Archives for September 2020

​What Can I Do to Avoid Termination Because My Kids Are at Home While I Am Working?

They say it takes a village to raise a child. From school, daycare, and aftercare programs, to sports practices and summer camps, to childcare assistance from family members and friends, most parents rely on many people and programs outside of their home to manage the daily juggles (and struggles) of raising children. This is particularly true for working parents who need their village to go to work and provide for their families.

The COVID-19 pandemic immediately eliminated most in-person work, childcare, and in-person school across the country in 2020, and parents had to quickly adjust to working from home with their children. Parents shared many videos online regarding children bursting in on Zoom meetings or other disruptions to a parent’s work. While these videos can be amusing, they demonstrate a real problem for some parents who continue to work from home when their children might need to be home.

Though most schools reopened in person, many childcare centers had to close due to pandemic losses. Some parents lost their childcare and have not found another option yet. Further, parents who now work from home permanently will have school-aged children home over the summers and other school vacations. This can stress parents who need to remain professional while working from home and keep their jobs.

What can employees do to avoid losing their jobs because their kids are at home while working? Many states have laws to support working parents, but these laws do not necessarily apply to having children at home during remote work. Below are some options you might have to pause your job responsibilities if your child must be home.

Know that Your Employer Has the Right Fire You

Now that pandemic-related lockdowns are winding down, many employers are terminating employees if children disrupt their work while working from home. Employers are within their rights to do so in most states due to at-will employment. You do not have the legal right to work at home with your child, and at-will employment laws allow employers to fire you for any lawful reason.

Your employer cannot fire you for becoming pregnant or giving birth to a child. However, if you work remotely and your children are disrupting your job, there are no discrimination laws to protect against termination. Keep reading to learn about possible options to avoid termination if you must work at home with your children for a period.

Possible Paid Leave for COVID-19-Related Concerns

The federal COVID-19 paid leave laws expired in 2021, but some states still have active laws to provide employees with possible leave.

For example, California provides up to 80 hours of supplemental paid sick leave for employees who need to:

  • Care for a child with COVID-19
  • Isolate due to a positive COVID-19 test
  • Care for a child due to a school or daycare closure for COVID-19 reasons

This law does not protect a parent who works at home with a child, but if your child needs to be home with you for COVID-19 reasons, you might qualify to take paid sick leave while caring for your child. Taking leave eliminates the risk that your child will do something to compromise your job while they are home. The supplemental paid leave expires on September 30, 2022, unless the state renews the measure.

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Unpaid Leave Under California’s Family-School Partnership Act (FSPA)

In addition to paid sick leave, California’s FSPA provides employees with up to 40 hours of unpaid leave per year to participate in certain child-related activities. This includes having to find, enroll, or re-enroll a child in school or daycare, participate in school or daycare-related activities, or address a school- or daycare-related emergency.

The COVID-19 pandemic arguably falls within the emergency provision, which includes when an employee’s child cannot remain in school or with a childcare provider due to a “natural disaster.” The FSPA applies to all employers with more than 25 employees and prohibits employers from terminating, threatening termination, demoting, suspending, or otherwise discriminating against employees for taking such leave.

Other Potentially Applicable Leave Laws

California has other leave laws that may come into play for an employee who needs to care for their child for reasons not necessarily related to the pandemic. For example, the California Family Rights Act (CFRA)—which is the California equivalent of the federal Family and Medical Leave Act (FMLA)—provides eligible employees with up to 12 weeks of unpaid leave per year to care for a family member with a serious health condition and to bond with a new child, among other reasons.

The FMLA applies to employers with over 50 employees, but as of January 1, 2021, the CFRA applies to California employers with more than five employees, so most employees have this opportunity. We have more information on CFRA leave expansion should you want it.

The law protects employees who need to take CFRA leave, meaning employers cannot terminate, discipline, or otherwise discriminate against an employee for taking leave, and employees have the right to return to the same or a comparable position after their leave.

California’s Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) provides employees who have worked for their employer for at least 30 days with up to three days (or 24 hours) of paid sick leave per year, accrued at the rate of one hour per every 30 hours worked. Employees can start using them on their 90th day of employment. Employees can use HWHFA leave to care for a sick family member. Similar to other leave laws, employers cannot terminate, discipline, or otherwise discriminate against employees for taking HWHFA leave.

Some Terminations Are Wrongful

Just because employers can fire some employees for having children at home does not mean that every termination is lawful. Some employers might use a child as a pretextual reason to fire an employee for an unlawful reason. You cannot expect your employer to admit to wrongful termination, so you need a legal professional to investigate what happened and whether your employer violated your rights.

What makes a termination wrongful?

Some employers retaliate against remote employees who request leave under CFRA or another applicable law. Termination because you requested leave is unlawful.

If an employment attorney determines your termination was wrongful, they can take steps to hold your employer accountable. This can include filing a claim with the state or in court to seek compensation for your losses due to the termination.

Need Legal Assistance from an Employment Lawyer?

If your employer refuses to provide you with leave that you qualify for under the law, or your employer takes adverse action against you because you take qualified leave, contact an employment law firm immediately. If your child needs to be home while you work, there are options to protect your job. Contact us for legal help today.

California Expands Family Leave Protections To Small Business Workers

On Sept. 17, 2020, Governor Newsom signed CA S.B. 1383 into law, ensuring job-protected family leave for Californians who work for an employer with five or more employees to bond with a new child or to care for themselves or a family member. The new law, which is set forth in the newly added Government Code §12945.2, is set to take effect on Jan. 1, 2021.

S.B. 1383 expands rights under the pre-existing California Family Rights Act (CFRA), which already provides leave protections for workers at larger employers who employ 50 or more workers. Now, with the new law, those who work for small businesses will also receive job-protected leave.

“Californians deserve to be able to take time off to care for themselves or a sick family member without fearing they’ll lose their job,” Newsom said in a statement.

Like the former CFRA, employers with five or more employees will now be required to grant up to 12 workweeks of “family care and medical” leave in any 12-month period to employees who have at least 1,250 hours of service with the employer during the previous 12-month period. The employer must guarantee the employee the same or comparable job position upon return from leave.

Family care and medical leave may be taken for any of the following reasons:

  • Birth of a child of the employee or placement of a foster or adopted child with the employee;
  • To care for a family member (child, parent, grandparent, grandchild, sibling, spouse, or domestic partner) with a serious medical condition;
  • Employee’s own serious health condition that makes the employee unable to perform the functions of his or her position (except for leave taken for pregnancy-related disability, childbirth, or related medical conditions, which are covered by other laws); and/or
  • A qualifying exigency related to active duty or call to covered duty of an employee’s spouse, domestic partner, child, or parent, in the Armed Forces of the United States.

Employers may not interfere with or deny employees’ rights to exercise family care and medical leave. Similarly, employees are protected from retaliation by their employers for requesting or using family care and medical leave.

If you feel your employer has violated your family care and medical leave rights, you may be able to hold the company liable for damages.

For more information or to schedule a complimentary consultation with an attorney who can help, contact Haeggquist & Eck, LLP online or call us at (619) 342-8000.

California’s New Notice & Reporting Requirements Relating To COVID-19 Workplace Exposures

In response to the COVID-19 pandemic, on Sept. 17, 2020 Governor Newsom signed into law A.B. 685 requiring employers to adhere to stricter occupational health and safety rules. The new law also expands Cal/OSHA’s enforcement powers.

Effective Jan. 1, 2021, the new law will require employers to give workers written notification within one day of receiving notice of a “potential” exposure to COVID-19. Along with this notification, employers must also give employees information regarding COVID-19-related benefits to which the employee may be entitled. The employer must also provide employees with its plans for implementing and completing disinfection for a safe worksite. Moreover, an employer shall not retaliate against a worker for disclosing a positive COVID-19 test or diagnosis, or for disclosing an order to quarantine or isolate.

The new law also requires an employer that has a sufficient number of COVID-19 cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, to report names, number, occupation, and worksite of positive COVID-19 cases to the local public health agency. Cal/OSHA is also given authority to shut down a workplace that creates an imminent hazard due to COVID-19 exposure risk.

If you feel your workplace is unsafe because of COVID-19 and/or you have questions relating to COVID-19 workplace exposures, contact Haeggquist & Eck, LLP online or call us at (619) 342-8000.

Can My Employer Require Me To Get a COVID Vaccine When It Is Available?

With numerous COVID-19 vaccines in development, the question arises whether employers will be able to require their employees to receive the vaccine as a condition of employment.

The U.S. Equal Employment Opportunity Commission (“EEOC”) has stated in its latest version of its guidance, updated on March 21, 2020, after its declaration of the COVID-19 pandemic, that an employer cannot require all employees to get a flu vaccine. However, “employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” The EEOC also emphasized that there is no vaccine currently available for COVID-19, suggesting that the agency may revisit the issue once a vaccine is available.

The EEOC guidance also makes clear that employers will need to consider making exceptions to any vaccination requirement for employees: (1) under the Americans with Disabilities Act (“ADA”) if an employee raises a potential health concern with the vaccine; or (2) under Title VII if the employee raises a religious objection to the vaccine.

The EEOC and OSHA may issue further guidance. There may also be guidance from the Advisory Committee on Immunization Practices (“ACIP”), which is a committee within the CDC made up of medical and public health experts who develop recommendations on the use of vaccines in the United States. Many state and local governments rely on the ACIP’s recommendations in developing vaccine mandates, such as those for public schools.

The ACIP provides annual recommendations regarding flu vaccines and is likely to make recommendations regarding any COVID vaccine. Based on the ACIP’s guidance, it’s possible that states may mandate the COVID vaccine for certain categories of employees, such as essential workers.

Do You Need Legal Assistance?

If you believe your rights are being violated by an employer illegally insisting that you get a COVID-19 vaccine as a condition of employment, reach out to Haeggquist & Eck, LLP for assistance. We can help employees hold their employers accountable for violating their rights on an individual level or as a class-actions if the employer’s violations affect more than one individual.

Learn more about what we can do for you during a free initial case evaluation. Schedule yours with us today by calling (619) 342-8000 or by filling out our online contact form.

California Expands COVID-19 Paid Sick Leave

Earlier this year, Governor Newsom signed Executive Order N-51-20, which we discuss in our blog here. The order provided paid sick leave for food s workers at large employers (over 500 employees). On September 9, 2020, Governor Newsom signed Assembly Bill (AB) 1867, which, among other things, codifies the executive order’s language, with some modifications, creating new California Labor Code §248. The bill also provides paid sick leave requirements for other large employers, creating a new California Labor Code §248.1.

Like Executive Order N-51-20, Labor Code §248 provides paid sick leave for food sector workers who work for an employer with 500 or more employees. These workers may receive up to 80 hours of paid sick leave if they are unable to work for one of the three following qualifying reasons: (1) The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (3) The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19. The law will apply until December 31, 2020 or the end date for benefits under the Families First Coronavirus Response Act (“FFCRA”), whichever is later.

With respect to Labor Code §248.1, it provides for paid sick leave to other private hiring entities with 500 or more employees. Except for food sector workers covered under Labor Code §248, this section covers all other employees, including healthcare providers and emergency responders (who may be excluded under the FFCRA). Employees may use paid sick leave for the same reasons identified above under Labor Code §248. Notably, paid sick leave under Labor Code §248.1 must be provided in addition to any paid sick leave available to a worker under California’s pre-COVID-19 Healthy Workplaces, Health Families Act of 2014 (“HWHFA”), which already requires at least three days of paid sick leave. Further, Labor Code §248.1 prohibits employers from requiring its workers to use other paid or unpaid leave, time off, or vacation time that the employer provides before, or in lieu of, using paid leave under Labor Code §248.1. Employers are also required to itemize the amount of leave available on employees’ itemized wage statements.

Moreover, under the new laws, employers cannot require, as a condition of using leave, that workers search for or find replacement workers to cover the days they use leave. Similarly, a subject employer cannot deny a worker the right to use leave, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against a worker for using leave, attempting to exercise the right to use leave, filing a complaint with the Labor Commissioner, cooperating in an investigation of an alleged violation of the laws, and/or for opposing any policy, practice, or act that the laws prohibit.

Finally, AB 1867 added Health and Safety Code §113963, which allows food sector worker employees permission to wash their hands every 30 minutes and additionally as needed.

If you feel your employer has violated your paid leave rights, you may be able to hold the company accountable for damages and penalties.

For more information or to schedule a complimentary consultation with an attorney who can help, contact Haeggquist & Eck, LLP online or call us at (619) 342-8000.

Can I Be Fired For Complaining About a Lack of Safety Precautions At Work?

As we slowly transition from the new normal back to the old normal, we cannot forget that we are still very much in the midst of a global pandemic. Although cases have waned in California (for now), our state still tallies thousands of new cases every day. As we learned in June, this is not the time to throw caution to the wind.

Unfortunately, your employer might not feel the same way. Many people are coming back to work and finding that their employers are not following the Federal and State-mandated precautions. Although these workers don’t feel comfortable in such a dangerous work setting, they also don’t feel comfortable stirring the pot and risk losing their jobs. After all, their employers might already be struggling after months of shutdowns, and an added safety complaint might cause their employer to retaliate. Fortunately, employees who bring these safety concerns to their employer are protected from retaliation under California law.

California Labor Code §6310 prohibits retaliation against any employee who makes “any oral or written complaint to … his or her employer” relating to the employee’s health or safety.[1] Employees who prevail on a retaliation claim under §6310 are entitled to reinstatement and back pay, and these claims may be brought as a private right of action. Simply put, California employees can make complaints to their employers about health and safety concerns without fearing losing their job over this complaint. If they are terminated, they can file a lawsuit, and if successful, can be reinstated back in their position and receive backpay. Even if the complaint is not based on an actual health and safety violation, employees are still protected, so long as they complain in good faith about their working conditions.[2]

If an employee blows the whistle to a government or law enforcement agency, or anyone “with authority over the employee” regarding a safety violation under law, such as violating the State’s executive orders relating to COVID-19, workers are further protected from retaliation under California Labor Code §1102.5(b). Similarly, Labor Code 1102.5(a) prohibits employers from preventing their employees from disclosing safety concerns which the employee reasonably believes to be a violation of law.

California law provides many protections for employees who do not feel safe at work. While we all want to go back to normal, we must all recognize that COVID-19 is still here and we must remain vigilant. Fortunately, concerned employees are protected from retaliation.

Do You Need Legal Assistance?

Haeggquist & Eck, LLP is here to help employees fight for their rights if they experienced retaliation for speaking up about unsafe or unsanitary working conditions. If you were punished for speaking up about not feeling safe at work, especially within the context of the COVID-19 pandemic, we may be able to help you fight for fair and just compensation.

Reach out to our attorneys today for a free consultation by contacting us online or calling (619) 342-8000.



[1] See Cal. Lab. Code §6310(a)(1).

[2] Hentzel v. Singer Co., 138 Cal. App. 3d, 290, 299-300 (1982).

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