Can I Lose My Job If I Have COVID-19?

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.

Can My Employer Treat Me Differently Because I’m Asian or from Another Country During the COVID-19 Pandemic?

As a result of the COVID-19 pandemic, Asian-Americans have found themselves subjects of xenophobia and racism. In addition to a myriad of anecdotal instances of xenophobia, San Francisco State University discovered a 50 percent rise in COVID-19 anti-Asian discrimination from Feb. 9 to March 7, 2020.

Last month, EEOC Chair, Janet Dhillon, issued a statement urging employers to be mindful of discrimination, harassment, and retaliation of Asian employees. In other words, employers cannot treat their employees differently because they are Asian or of Asian descent, and should ensure their Asian employees are not mistreated by others at work. This is, however, simply a restatement of Federal and State law that prohibit discrimination based on race and/or national origin.

However, if the CDC or other state or local public health officials recommend a quarantine period when returning from specified locations, an employer may ask whether its employees are returning from these specified locations. The CDC recently advised those who have travelled internationally in the last 14 days to stay at home for 14 days, and specifically advises, “Do not go to work.” Thus, your employer could ask if you had travelled to China, or any other country in Asia, in the last 14 days, and if you did travel, may ask you to go home. This policy, however, applies to all employees, and is not a blank check to discriminate against Asian employees.

Much like COVID-19, racism is a virus that spreads rapidly. No matter what we look like, we are all in this fight together and we all have a common goal: to beat this virus and protect millions of lives.

Are You Being Mistreated at Work?

There is no excuse for violating your federally protected right to be free from experiencing discrimination at work. If you are being mistreated on the basis of your race, skin color, national origin, or because of another protected characteristic, you can hold your employer legally accountable.

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.

Strikes Ratchet Up During COVID-19 – Essential Workers Are ‘Doing It For Themselves,’ As the Song Goes

Our nation is witnessing what may be the start of a tidal wave of workers going on strike, particularly in “essential” businesses such as the grocery and delivery industries. Since at least March 27, 2020, news headlines have exploded with reports of actual or threatened strikes (or “sick outs”) by workers at Amazon, Whole Foods (owned by Amazon), and Instacart. These workers are demanding a host of protections and benefits, including hazard pay, increased safety protections, and other work condition improvements.

Who can blame these workers for striking? While most Americans stay home to “shelter in place”, these workers are suffering through unbelievably long hours, often spent in confined areas, and with little employer-provided health protections or sanitization efforts to guard against the COVID-19 virus. These workers are seeing fellow employees becoming infected with COVID-19, yet they are expected to continue to place themselves in harm’s way, with no appreciation of the risk they are taking to their lives. They are truly in the “trenches” of the war to help keep Americans fed.

Fortunately, the workers are not without some governmental support. On March 25, 2020, fifteen states Attorneys General wrote to Amazon and Whole Foods to ask that these businesses pay heed to the guidance of the Centers for Disease Control, and to adopt standards akin to those in the Families First Coronavirus Response Act.

Similarly, during California Governor Newsom’s March 31, 2020 public update on the COVID-19 pandemic, he relayed a conversation with John Grant, the head of the United Food & Commercial Workers (“UFCW”) Local 770 in the Los Angeles area (the “UFCW Local 770”), about the plight of grocery workers. As summarized by Newsom, essential workers in the grocery stores are also on the “front line” just like workers in the medical field.

UFCW Local 770 has started a petition for Newsom to enforce protections for these essential workers. The petition asks the State of California to “designate essential retail workers as emergency frontline personnel” and to provide increased sanitary protections (including personal protection equipment (PPE), among other benefits.

Ultimately, it is in everyone’s best interests to protect all workers, and especially those in “essential” jobs at this critical time. As one news report wisely questioned: “What will happen if a combination of labor unrest and risk of infection shuts down the same delivery platforms and retail avenues that people are relying on to get through the crisis as they self-quarantine?” As the saying goes, we are all in this together. Protecting employee rights protects everyone.

Sadly, one striking Amazon worker was reportedly fired for participating in a New York strike effort. The President of the Retail, Wholesale and Department Store Union is cited as called the firing “unacceptable”. New York’s Attorney General and the Mayor of the City of New York are reportedly calling for investigations into the alleged firing. We trust that employers will think twice before further harming employees for seeking improved work conditions.

We encourage both employers and employees to consider all current guidance offered by federal and state regulatory authorities concerning workplace safety at all times, but especially during COVID-19. Recent informative guidance may be readily located on the CDC’s, and California’s website. Finally, while employees will need to consider their particular employment situation (i.e., are they a union member; are they subject to a collective bargaining agreement; etc.), the National Labor Relations Board (the “NLRB”) also has useful online guidance concerning strike rights in various situations. Right to strike laws can be complex and vary based on several factors. We encourage employees to consult with counsel before undertaking any strike or “sick out.”

At Haeggquiest & Eck, LLP, also welcome any employees – particularly those in jobs deemed “essential” – who have concerns about their working conditions to contact us online or by calling (619) 342-8000 for assistance.

What Are Employees Entitled To Under the Stimulus Package?

On Friday, March 27, the White House and Congress approved the largest emergency aid package in US history, providing an obligatory jolt to our nation’s deteriorating economy. The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) puts money in the pockets of Americans who need it most in these tumultuous times.

Here are several key provisions that are especially advantageous to workers:

Payment to Families

Perhaps the most talked-about deliverable from the Act is the $250 billion set aside for payment to families. In sum, the IRS will send a one-time $1,200 rebate to individuals making up to $75,000 (based on adjusted gross income), or a $2,400 rebate for joint filers making up to $150,000. These payments will be reduced by 5 percent of the amount made in excess of $75,000 or $150,000, and there will be no payments for individuals making more than $99,000 and joint filers making more than $198,000. Additionally, parents would receive $500 for each child younger than 17. According to the Tax Policy Center, 90 percent of Americans would be entitled to full or partial payments under the plan.

The IRS should be distributing these rebate checks by mid-April, and you should talk to your tax advisor regarding how these payments apply.

Unemployment Benefits

The Act also sets aside an additional $250 billion for expanded unemployment benefits. Specifically, unemployed workers are eligible to receive an additional 13 weeks of unemployment benefits and receive a four-month enhancement of benefits for an additional $600 per week on top of what they receive from state benefits. Additionally, the Federal Government will pay unemployed workers for the first week individuals usually must wait for unemployment payments. These benefits are not only limited to employees though, as freelancers, furloughed employees, gig workers, independent contractors, and self-employed workers are also entitled to these benefits.

Healthcare Workers

Healthcare employees will be getting the help they’ve deserved for weeks, with $100 billion directed to hospitals and health care systems across the nations. Much of this funding will be used for personal and protective equipment for our invaluable health care workers.

Homeowners and Renters

Indeed, a $1,200 rebate is only a drop in the bucket for folks who must pay a mortgage or rent – which is especially steep in California. Fortunately, the bill protects individuals from foreclosures and evictions due to financial issues. Specifically, the plan allows anyone facing financial hardship from coronavirus to receive forbearance on federally backed mortgage loans for up to 60 days, with 30-day extension options. Additionally, landlords with federally backed mortgage loans could not evict tenants solely for failure to pay rent for a 120-day period.

Do You Need Legal Help?

Reach out to the attorneys of Haeggquist & Eck, LLP if you’re an employee who needs help. Our firm helps workers like you hold employers accountable for mistreatment and violations of employment law.

Contact us online or call (619) 342-8000 to get a free initial consultation that we reserve for prospective clients.

Can My Employer Ask About Disabilities or Medical Conditions Like Immunodeficiency During the COVID-19 Pandemic?

Although an employer typically may not ask you about your disability or medical condition, employers may argue that it is appropriate during the COVID-19 pandemic if they can establish that COVID-19 is a “direct threat” making you more susceptible to an adverse impact.

Currently, federal and state regulatory authorities have released useful guidance for employers and employees to understand the impact of COVID-19 upon existing laws involving disability discrimination. One such resource, which we encourage you to consider, is the U.S. Equal Employment Opportunity Commission’s (the “EEOC”) guidance issued in an online article entitled, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.”

The EEOC Guidance is directed to employers who are subject to the American with Disabilities Act (the “ADA”), which protects employees against disability discrimination. California’s Fair Employment and Housing Act (“FEHA”) is similar to the ADA in many respects, and California’s Department of Fair Employment and Housing (the “DFEH”) has also issued useful guidance.

As explained in the EEOC Guidance, generally during a pandemic that is akin to seasonal influenza or the 2009 H1N1 virus, it remains impermissible for your employer to ask you disability-related questions or to conduct a medical examination when you are asymptomatic. The EEOC has left open the question, however, whether COVID-19’s severity provides the ADA-covered employer with “sufficient objective information” to “reasonably conclude” that COVID-19 qualifies as a “direct threat” such that it may ask about other disabilities or medical conditions (non-COVID-19) that may make you more susceptible to adverse impact.

Employers May Try to Claim ‘Direct Threat

Indeed, COVID-19 being declared a “global pandemic” by the World Health Organization (“WHO”) means that some ADA-covered employers will undoubtedly seek to rely on the ADA’s “direct threat” exception that permits employers to make disability-related inquiries when the employee (whether due to the pandemic or another medical condition or disability) poses a “direct threat” such that there is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” See 29 C.F.R. §1630.2(r). According to the CDC, people who have serious underlying medical conditions may be at higher risk for more severe complications from COVID-19. As stated in the EEOC Guidance, COVID-19 itself will likely be held to meet the “direct threat” standard. Therefore, if you have COVID-19 symptoms, employers have been conducting screenings for COVID-19 and have somewhat more leeway in how they interact with employees concerning COVID-19 work conditions (the topic of other blog posts herein).

So while your employer (during the COVID-19 pandemic) may assert that it is permitted to take your temperature and ask about COVID-19 symptoms, it is unclear whether your employer may also ask you about non-COVID-19 medical conditions or disabilities that place you (or others) at greater risk for harm.

Whether your non-COVID-19 disability presents a “direct threat” will depend on:

  • The duration of the risk
  • The nature and severity of the potential harm
  • The likelihood that the potential harm will occur
  • The imminence of the potential harm.

The determination of the “direct threat” must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. See 29 C.F.R. §1630.2(r). As noted in the EEOC Guidance, this means that the determination of a “direct threat” should not be based on “irrational fears” or “subjective perceptions.”

As stated in the EEOC Guidance, “[e]mployers should not assume that all disabilities increase the risk of influenza complications.” Examples offered in the EEOC Guidance of disabilities with a presumably lesser risk of complications are those impacting vision or mobility. Yet, careful thought illustrates how even more visually “hidden” disabilities should not be grounds for irrational fears of adverse risk. For example, it would be a subjective assumption that all persons with cancer may be immunocompromised in the same way. In practice, the immunocompromised status of a cancer patient often varies based on the type of cancer or the status of treatment.

Avoid Oversharing Sensitive Medical Information

Thus, while we believe it would be improper for employers to use COVID-19 as a pretext to inquire as to the disabilities or medical conditions of asymptomatic employees, employers will no doubt argue that there is a potential “gray area” with inquiries about disabilities or medical conditions that the WHO, the Centers for Disease Control (the “CDC”) or other health authorities have determined place you at heightened risk for severe complications from COVID-19.

Ultimately, even in light of the EEOC’s suggestion on this issue, the answer to this question is not “one size fits all” and will depend on individual facts and circumstances. We would caution against oversharing sensitive medical information, particularly when other options exist for employees, notably those in “non-essential” positions, to either work remotely or take leave (please see other blog posts on these topics).

Are You an Employee Concerned about an Employment Law Violation?

The attorneys of Haeggquist & Eck, LLP are relentless advocates for workers who endure mistreatment by their employers. Our attorneys have decades of combined experience helping people seek fair and just compensation when they’ve been taken advantage of at work.

Begin fighting for what you deserve by contacting Haeggquist & Eck, LLP online or calling (619) 342-8000 to arrange a free case evaluation.

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