Archives for September 15, 2020

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.

 

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[1] See Cal. Lab. Code §6310(a)(1).

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

Under the newly enacted Families First Coronavirus Response Act (“FFCRA”), some employees are allowed to take up to 12 weeks of continuous or intermittent leave to care for their child because their child’s school has shut down and such employees cannot be fired for taking such leave.

The FFCRA requires private employers with fewer than 500 employees to provide employees who have been employed for more than 30 days with up to 12 weeks of Family Medical Leave Act (“FMLA”) leave if the employee cannot come to work, or telework, to care for a minor child whose school or child care is closed or unavailable due to COVID-19. Section 5104 of the FFCRA prohibits employers from discharging, disciplining, or discriminating against employees who take this type of leave under the FFCRA.

California law also requires employers who employ more than 25 employees to provide up to 40 hours of leave to parents, guardians, stepparents, foster parents and grandparents, who give advance notice to their employer, to care for their children during a “school emergency.” A “school emergency” includes when a child cannot return to school due to a “national disaster….” One could reasonably argue the pandemic qualifies as a “national disaster,” requiring an additional 40 hours of leave on top of the leave provided under the FFCRA. Importantly, California employers are prohibited for discharging or discriminating against their employees for taking this type of leave.

If Your Employer Has More Than 500 Employees

For employees working for employers with more than 500 employees, an employer is not required to provide a reasonable accommodation for an employee simply because an employee’s child’s school is closed under the FFCRA. While Federal and California law require employers to provide reasonable accommodations for pregnant or disabled employees, an employer is not required to provide a reasonable accommodation for employees to take care of their children just because schools or daycares have closed. Accordingly, there are no legal grounds to request this type of “reasonable accommodation” and therefore the law does not protect employees from being fired for requesting this accommodation.

If, however, an employee’s child suffers from a serious medical condition, where the parent must stay home to care for the child’s condition, the employee may be able to request an accommodation under the FMLA or under California’s Fair Employment and Housing Act (“FEHA”) based on the employee’s association with her disabled child.

Do You Need Legal Assistance?

If you have any questions about your specific rights to leave, please feel free to contact Haeggquist & Eck, LLP for more information and to arrange a free consultation with one of our attorneys.

Get in touch with us today by filling out our online contact form or calling (619) 342-8000 for help.