As part of Haeggquist & Eck, LLP’s ongoing efforts to guide employees through this turbulent time, we know this is one of the biggest questions at the forefront of everybody’s mind. With some caveats, the answer is no, you cannot lose your job because you contract COVID-19.
Preexisting Laws May Offer Some Protection
State and federal law both provide protection for employees who need time off because of a serious health condition suffered by a worker or a worker’s immediate family member. At the federal level, the Family and Medical Leave Act (“FMLA”) provides up to 12 weeks of protected leave to deal with a serious health condition. In California, the California Family Rights Act (CFRA) provides similar protection. When an employee takes leave protected by the FMLA and the CFRA, an employer must reinstate the employee after the leave ends.
Employees, however, must meet certain eligibility requirements, and both laws only apply to employers with 50 or more employees. Moreover, under the current framework of employment law, not every case of the common cold or seasonal flu has qualified as a sufficiently “serious” health condition triggering the job protections of the FMLA and CFRA. Although COVID-19 can be deadly for some patients, many patients experience only mild-to-moderate symptoms –not appreciably different from a cold –that might not be sufficiently serious to trigger FMLA and CFRA job protections.
Common sense suggests that – given the virulence of the COVID-19 pandemic and the universal guidance to stay home – even when you have no symptoms, a case of COVID-19 should count as a sufficiently serious health condition.
Another level of protection comes from California’s Fair Employment and Housing Act (FEHA). Under FEHA, employers must make reasonable accommodations to “disabled” employees. The legal definition of disability is broad, and an appropriate accommodation could include a short, job-protected leave for the purpose of convalescing from COVID-19 and protecting the public by sheltering in place. Notwithstanding the preexisting legal framework of state and federal employment law, many workers will ultimately benefit from the emergency legislation enacted by the United States Congress in response to the global pandemic.
Emergency Paid Sick Leave under the FFCRA
The Families First Coronavirus Response Act (FFCRA), which went into effect on April 1, 2020, includes the Emergency Paid Sick Leave Act (EPSLA), which guarantees paid sick leave for employees in a variety of situations related to COVID-19. Haeggquist & Eck, LLP has a separate blog entry on the details of paid sick leave under the FFCRA, which you should read if you think you might be entitled to paid sick leave, or if you simply want to learn more about the new law. For all intents and purposes, the FFCRA requires any employer with fewer than 500 employees to provide up to 80 hours of paid sick leave to COVID-19 patients.
In light of the current shelter-in-place orders in effect throughout the country, the FFCRA also applies to employees who are unable to telework. Therefore, you can take paid sick leave, even if you are already working from home, but unable to work, because you are sick with COVID-19.
Q: Can I Loose My Job While on Sick Leave?
A: Perhaps most importantly, the paid sick leave law also includes a non-discrimination and anti-retaliation provision. Employers may not terminate or discriminate against employees who take paid sick leave under the FFCRA because of COVID-19.
Although the law does not protect you purely because you contract COVID-19, it does protect workers who take leave to convalesce from the disease. This is a positive development, because it helps people to adhere to the current government recommendations to self-quarantine at home in order to prevent the community spread of COVID-19. Thus, if you find yourself diagnosed with, or suffering symptoms of, COVID-19, the best thing you can do to protect yourself and your job is to take the sick leave protected by the Act. Doing so should trigger the Act’s job-protection provisions.
The major exceptions to the EPSLA are: (1) it does not apply to employers who employ more than 500 employees; and (2) healthcare providers and emergency responders may be excluded from the Act. Employees potentially covered by those exceptions may need to fall back on the preexisting protections of laws like the FMLA and the CFRA.
The Families First Coronavirus Response Act is only one piece of federal legislation designed to protect businesses and workers as the state of employment in the United States becomes more uncertain by the day. The recently enacted laws complement preexisting laws. Read our blog post on the subject for more detail about the interplay between preexisting labor and employment law and the new federal laws enacted in response to the pandemic.
What Should I Do If My Employer Does Not Protect My Job?
The particular facts and circumstances of every case will differ, particularly because this pandemic is unlike anything our legal system has had to contend with. If you have any doubts about whether your employer should have protected your job, the employment law attorneys of Haeggquist & Eck, LLP can analyze your specific situation, and seek fair and just compensation for you if an employer breaks the law.
Contact our firm online or call (619) 342-8000 to arrange a free initial consultation with one of our attorneys.