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COVID-19

Can My Employer Require Me To Use Leave During the COVID-19 Pandemic?

In California, Governor Newsom issued an Executive Stay at Home Order instructing all workers who do not work in Essential Critical Infrastructure jobs to stay home. While some employers are capable of offering work from home arrangements (“telework”), others are not – resulting in layoffs (both permanent and temporary) and leaves of absences.

With respect to leaves of absences, some employers are asking some employees to take a leave, while allowing others to continue working. This post addresses questions employees may have regarding: (1) whether your employer can require you to take leave; and (2) if so, what pay and benefits are you entitled to while on leave?

Can my employer make me take leave during the COVID-19 pandemic?

Generally, the answer is yes. In California, employers can instruct employees to take a leave of absence during the COVID-19 pandemic if the selection of employees for leave is based on a legitimate business concern and not based on a protected characteristic. For example, determinations for leaves of absence (and/or layoffs) cannot be based on race or country of origin due to unsupported fear.

It is also proper for employers to place some employees on a leave of absence and not others, again, if not done based on an unlawful discriminatory basis. However, an employer may place, e.g., production workers on a leave where telework is not possible, but require office workers, such as managers, to continue to work because telework is possible.

What if I work in an Essential Critical Infrastructure job and am exempt from the Stay at Home Order – can my employer still place me on a leave of absence? The answer is also yes, if not done discriminatorily. Is it also proper for my employer to place all “at risk” workers (e.g., those who are 65+, have a serious chronic medical condition, or have a compromised immune system) on leave, while allowing others to remain at work? This answer is not as clear, but likely yes. The objective evidence from the CDC and State and local health agencies is by having “at-risk” workers continue reporting to the worksite poses a “direct threat” to those workers. If a “direct threat” does exist, it is okay for employers to place these workers on leave if telework is not available without fear of running afoul of disability discrimination laws (e.g., the American with Disabilities Act and California’s Fair Employment and Housing Act). With respect to workers over the age of 65, please see our blog post here, but we believe for the same reasons, it would also be reasonable.

Am I entitled to pay and benefits while on leave during COVID-19?

If you are placed on a temporary leave because of a federal, state, or local isolation order related to COVID-19, such as Governor Newsom’s Executive Stay at Home Order, under the newly enacted Families First Coronavirus Response Act (the “FFCRA”), starting on April 1, 2020, you may be eligible to receive at least a portion of your compensation for about two weeks. If you are unable to telework and are placed on leave to care for your child because your child’s school or place of care is closed or the childcare provider is unavailable due to COVID-19, you could be eligible for partial pay after the first 10-day leave period. The FFCRA also provides paid sick leave for a few other reasons during the first 10-day period. For more information, visit our blog post discussing the FFCRA.

With respect to employer-sponsored group health insurance, you should review your employer’s policy relating to benefits for coverage. Some employer’s benefit plans may require employees to be “actively working” and working full-time hours (e.g., 30 hours) to be covered by the plan. If this is the case, it is possible your health insurance benefits could be canceled after a certain period of time. You also want to verify who is responsible for paying the insurance premium during this time (the employer or employee). For most employers, in the event of loss of coverage, employers may be required to offer COBRA continuation coverage to employees due to a COBRA qualifying event. A reduction in hours that causes a loss of coverage is a COBRA qualifying event.

Depending on the reason for leave, you may be eligible for Unemployment Insurance, State Disability Insurance, or benefits under California’s Paid Family Leave. See our blog post discussing the interplay between these leave and benefits laws.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

During the COVID-19 Pandemic, Can I Be Treated Differently Because I Am Over 65?

There is still little we know about COVID-19, but what we do know is that those who are 65 years of age or older are at a higher risk of developing more severe illnesses as a result of COVID-19.1 The Center for Disease Control (“CDC”) has confirmed that eight out of ten COVID-19 related deaths have consisted of people who were 65 or older.2 Additionally, on March 15, 2020, California Governor, Gavin Newsom, issued an Executive Order asking Californians over 65 to isolate themselves at home.3

Today, more than 20 percent of adults over 65 are either working or looking for work, compared to 10 percent in 1985.4 Thus, the recent state and federal warnings raise questions for nearly a quarter of those over 65. These questions include: Will my employer send me home because I am over 65? Will I lose my job because of my age and susceptibility to serious illness? Will potential employers ignore my resume because I’m higher risk? These questions boil down to one primary inquiry: Can my employer treat me differently because I am over 65?

In general, an employer cannot treat you differently simply because you are over 65 years old. The Federal Age Discrimination in Employment Act (“ADEA”) and the California Fair Employment and Housing Act (“FEHA”) prohibit discrimination against people who are 40 or older, unless the employer can establish the age limitation is based on a bona fide occupational qualification.5 These Federal and State laws forbid an employer from refusing to hire, fire, or discriminate against a person regarding the terms, conditions, or privileges of that person’s employment.

Recently, the Equal Employment Opportunity Commission (“EEOC”) provided guidance on this very issue.6 The EEOC advises reintegration of workers over 65 even though they are considered high risk. Even if an employer is legitimately concerned for the health and safety of its employee, it cannot exclude someone from the worksite solely because that employee is a certain age. Some of the specific issues addressed by the EEOC include:

  • Employers may not involuntarily exclude an individual from the workplace based on an individual being 65 years or over;
  • Employers may not postpone the start date or withdraw a job offer because the individual is 65 years or over;
  • Employers, however, are “free to provide flexibility to workers 65 and older,” even if this means younger workers ages 40-64 are being treated less favorably based on age in comparison.

In sum, absent any other considerations, an employer may not exclude an employee from the workplace because he or she is 65 or older, even if the employer is acting to protect the employee due to his or her higher risk of illness from COVID-19.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Interplay Between COVID-19 Paid Leave Act & Existing Leave Rights

On March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA), which will go into effect on April 1, 2020. It requires employers having 500 or less employees to pay sick and family leave to employees impacted by COVID-19 under certain circumstances. Our blog post here describes how employees may be entitled to paid sick and family leave under the FFCRA.

The FFCRA has an interesting interplay with existing leave laws, such as the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), California Paid Family Leave (PFL), and the Healthy Workplaces, Healthy Families Act (”HWHFA”). Employees and employers alike should know how this interaction between new and old laws will play out in the workplace.

Eligible employees impacted by COVID-19 may also qualify for benefits under the American Disabilities Act (ADA), California’s Fair Employment and Housing Act (FEHA), and California School Activities Leave (SAL), as well as State Disability Insurance (SDI) or Unemployment Insurance (UI).

The COVID-19 Paid Leave Act Does Not Diminish Any Entitled Rights

The FFCRA specifically states it does not “in any way diminish the rights or benefits that an employee is entitled to under” any other “Federal, State, or local law” or any collective bargaining agreement or existing employer policy. In other words, in addition to paid leave under the FFCRA, an eligible employee retains his or her leave rights and benefits under the FMLA, CFRA, PFL, HWHFA, and other related laws. But, how exactly does this work, and what does each law provide?

While some laws merely provide the right to time off work and job protection upon return (e.g., FMLA, CFRA), other laws provide no such job protection, but provide for pay while on leave (e.g., HWHFA and PFL). The FFCRA provides a little of both to eligible employees.

Family & Medical Leave Act & the California Family Rights Act

The FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaidjob-protected leave per year. The CFRA is California’s equivalent of the FMLA and provides similar protections. These laws are designed to allow employees to take unpaid leave for certain family and medical reasons. They also apply to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees.

Unpaid leave may be granted for the following reasons:

  • To take medical leave when the employee is unable to work because of a “serious health condition”;
  • To care for an immediate family member (i.e., spouse, child, or parent) with a “serious health condition”;
  • For the birth and care of a newborn child of an employee;
  • For placement with the employee of a child for adoption or foster care; or
  • For military caregiver leave

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Upon return from an FMLA/CFRA leave, an employee must be restored to his or her original job or to an equivalent job.

Healthy Workplaces, Healthy Families Act

This law requires all California employers to provide eligible employees at least three days of paid sick leave. Note, however, that Los Angeles, San Diego, San Francisco, Santa Monica, Oakland, Berkeley, or Emeryville also have local ordinances requiring as much as six or nine days of sick leave per year.

Families First Coronavirus Response Act

This law provides both job protection and paid time off for eligible employees because of COVID-19. There are two relevant sections in this respect: (1) paid family leave; and (2) paid sick leave.

With respect to the paid family leave section, the law is simply a temporary expansion of the already existing FMLA (described above). Employees are eligible if they worked for the employer for at least 30 days prior to the designated leave.

For employees unable to telework, they may take up to 12 weeks of job-protected leave, but only for a single purpose: to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.

The first 10-day period of leave is unpaid. After that, the employer must pay full-time employees two-thirds of the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. For part-time employees or employees working irregular schedules, they are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking leave.

With respect to the paid sick leave section, it applies to any employee, regardless of his or her length of employment. An employee is entitled to 10 days of paid sick leave pay for six reasons, such as if the employment is subject to a federal, state, or local quarantine or isolation order related to COVID-19. See our blog post here for all six reasons and the amount of pay to which employees are entitled.

California Paid Fahttps://haelaw.com/blog/2020/march/employees-impacted-by-covid-19-you-may-be-entitl/mily Leave

PFL allows eligible employees to receive partial compensation for lost wages for up to six weeks in a 12-month period if they take time off from work to provide care for a seriously ill or injured family member (including grandparent, grandchild, sibling, or parent-in-law) or for bonding with a minor child within one year of the birth or placement of the child in connection with foster care or adoption. This includes leave to care for a family member who becomes seriously ill from COVID-19.

Despite the name, PFL is not a “leave” program; it does not provide employees with any entitlement to leave and it does not protect an employee’s job while he or she is out on leave. An employee may not be eligible for PFL benefits if he or she is receiving State Disability Insurance, Unemployment Compensation Insurance, or Workers’ Compensation benefits.

All claims for PFL benefits must be submitted directly to the Employment Development Department of the State of California. The EDD ultimately determines whether you receive FTDI benefits based on the serious health condition of certain family members that require your care. Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$1,300 a week.

Interplay Between the Paid Sick & Leave Laws

The way COVID-19 impacts your employment will determine the leave and benefits to which you may be entitled.

Example 1 (School Closures): Under the FFCRA, if you need to stay home to care for your child because her school closed due to COVID-19, 10-days after you are required to stay home, you may be entitled to two-thirds of your pay for up to 12 weeks (if you are unable to telework). In this scenario, you may also be able to receive full pay for the first 10-days under the paid sick leave section of the FFCRA. After the 12 weeks are exhausted, if a stay at home or isolation order is still in effect requiring school closure and, thus, precluding you from reporting to the workplace, absent an employer policy stating otherwise, you may not be entitled to additional pay or protected leave, unless you or a family member falls ill to COVID-19 or has some other medical condition entitling you to job protected leave under the FMLA or CFRA.

Example 2 (Isolation Orders): If you are subject to a federal, state, or local quarantine or isolation order related to COVID-19, you may be eligible for up to two weeks of paid leave under the FFCRA if you are unable to telework, in addition to any unused paid sick leave you already receive through your company’s poilicies or the HWHFA. In California, Governor Newsom has issued an Isolation Order applying to all non-critical infrastructure sectors. After the two weeks of paid leave, you may not be entitled to additional pay due to an isolation order, unless you are also entitled to paid leave because you have to stay home to care for a child whose school has closed.

Example 3 (Sick from COVID-19): If you are experiencing COVID-19 symptoms and seeking medical diagnosis or advise from a health care provider to self-quarantine due to COVID-19 concerns, you may be eligible for up to two weeks of partial pay under the COVID-19 Act. After that, you are entitled to at least three days of paid sick leave under the HWHFA. If you are still suffering from a “serious health condition” because of COVID-19, you may be entitled to up to 12 weeks of job protected leave under the FMLA and CFRA if you are an eligible employee.

Example 4 (Caring for family member sick from COVID-19): If you are caring for an individual subject to a quarantine or isolation order or as advised by a healthcare provider, you may be eligible for up to two weeks of partial pay under the COVID-19 Act. If you are caring for an immediate family member with a serious health condition because of COVID-19, you may be entitled to up to 12 weeks of job protected leave under the FMLA and CFRA if you are an eligible employee.

Think You Need an Employment Lawyer’s Help?

If you believe your employer isn’t following the law, reach out to an employment law attorney to help you hold them accountable. Although there is a complicated interplay between California’s existing employment regulations and new ones in the FFCRA, your employer is responsible for upholding your rights at work.

If You feel you are being taken advantage of, reach out to Haeggquist & Eck, LLP to get the legal representation that can fight for your right to seek fair and just compensation.

Contact us online or call (619) 342-8000 to arrange a free initial consultation with one of our attorneys.

What Is Expected of Me While I Am Teleworking?

On March 19, 2020, California Governor Gavin Newsom issued a temporary Stay at Home Order to protect the health and well-being of all Californians in order to slow the spread of COVID-19.

Relatedly, on March 18, 2020, Congress passed the Families First Coronavirus Response Act (“Act”), which goes into effect on April 1, 2020. Among other things, the Act provides up to 12-weeks of paid leave to eligible employees impacted by COVID-19 who are unable to telework. As such, many employers are offering telework arrangements to workers. Below are issues to consider regarding teleworking.

What is Telework?

Generally, telework means working one or more days away from the main office, in a space at the employee’s residence.

When and With Whom Is Telework Appropriate?

During the interim period of Governor Newsom’s Stay at Home Order, Telework arrangements are proper with all employees not working in critical infrastructure sectors, who are willing and able to work from home. Determinations cannot be based on race or country of origin, and must not otherwise be administered in a discriminatory way.

Telework and Wage & Hour Laws

All federal and state wage and hour laws still apply to telework arrangements. For example, non-exempt employees are still entitled to receive legally compliant meal and rest breaks. Employers must pay an extra hour of pay each day in which they fail to provide a meal or rest period. Likewise, employees must be paid for all hours worked, including for overtime hours. Accurate pay and time records must also be maintained.

Equipment, Supplies, and Related Business Expenses

Employers are required to reimburse employees for expenses “necessarily incurred” in their employment. To the extent equipment, supplies, materials, and related items are necessary for you to fulfill your telework job, your employer may need to provide you with such items or reimburse you for purchasing them. Your employer may have a reimbursement policy requiring advance notice and approval before incurring such business expenses.

Telework and Workplace Safety

Like the office or normal worksite, the telework location should be a healthy and safe environment. As such, employers may have policies requiring the telework location to be free from potential obstructions and hazards, such as clutter, exposed wiring, slippery surfaces, and other potential hazards.

Telework and Workers Compensation

California businesses with one or more employees must carry workers compensation insurance. There is no exception for this requirement for employees who telework. An employer may be liable for “any injury sustained by his or her employees arising out of and in the course of employment.” Liability for an injury sustained by an employee while working at a telework location is no different than if the employee had sustained the injury while working in the office or at the worksite.

Confidentiality, Privacy, Security, and Protection

Many employers will require employees to comply with their standard policies and procedures regarding non-disclosure, confidentiality, and security. Be sure to check with your supervisor and/or human resources department to ensure you are complying with the employer’s policies in this regard.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Employees Impacted By COVID-19: You May Be Entitled To Paid Sick and Family Leave

On March 18, 2020, Congress passed the Families First Coronavirus Response Act (the “Act”). The Act will go into effect on April 1, 2020. The Act requires employers having 500 or less employees to pay sick and family leave to employees impacted by COVID-19 under certain circumstances.

There are two provisions of the Act providing paid time off because of COVID-19: (1) paid family leave; and (2) paid sick leave.

PAID FAMILY LEAVE

The Act expands the already existing Family and Medical Leave Act (“FMLA”) on a temporary basis. Employees are eligible for benefits under this part of the Act if they worked for the employer for at least 30 days prior to the designated leave.

Eligibility: An eligible employee may take up to 12 weeks of job-protected leave to allow the employee, who is unable to work or telework, to care for the employee’s child (under 18 years of age) if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency.

Pay: The first ten-day period of leave is unpaid. After that, the employer generally must pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled. For part-time employees or employees working irregular schedules, they are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking leave.

Job Restoration: Employers with 25 or more employees will have the same obligation as under traditional FMLA to return any employee who has taken leave under this section to the same or equivalent position upon return to work. Even for employers with less than 25 employees, the employer must make reasonable attempts to return the employee to an equivalent position and requires an employer to make efforts to return the employee to work for up to a year following the leave.

PAID SICK LEAVE

Unlike with the paid family leave section above, the paid sick leave section applies to any employee, regardless of his or her length of employment.

Eligibility: An employee may be entitled to sick leave pay because the employee is:

  1. subject to a federal, state, or local quarantine, or isolation order related to COVID-19;
  2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. caring for an individual subject to a federal, state, or local quarantine, or isolation order, or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to a public health emergency; or
  6. experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Pay: Full-time employees are entitled to up to 80 hours of paid sick leave at the employee’s regular-rate (or two-thirds of the employee’s regular rate to care for qualifying reasons 4, 5, or 6 listed above). Employee’s working part-time or irregular schedules are entitled to be paid based on the average number of hours worked for the six months prior to taking leave. However, sick leave wages are capped at $511 per day (up to $5,110 total per employee) for their own use and up to $200 per day (up to $2,000 total per employee) to care for others and any other substantially similar condition.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Coronavirus & the Workplace: What You Need To Know

Workers likely have many questions about what to do during a pandemic like the one we are currently facing with the Coronavirus, COVID-19. You may simply want to know more about COVID-19 and how it spreads, symptoms, prevention and treatment, stigma and resilience, and what to do if you are sick.

You may also have questions about how COVID-19 affects your employment and workplace. This post addresses some of these issues and provides links to helpful resources. Information is being updated daily, and there is still much unknown about COVID-19. Current knowledge is based on what is known from publicly available sources to date.

What is Coronavirus Disease of 2019 (COVID-19)?

COVID-19 is a virus that causes respiratory illness. Symptoms can be mild to severe, ranging from a cough, fever, chills, and difficulty breathing to pneumonia, organ failure, and in some cases death. It is a new strain of “coronavirus,” which gets its name because of its crownlike shape.

COVID-19 was first identified in Wuhan, China in December 2019 and has since spread worldwide. The disease can spread from person-to-person through small droplets from the nose or mouth, which are spread when a person with COVID-19 coughs or exhales. These droplets can land on objects and surfaces allowing other people to catch the virus by touching these objects or surfaces, then touching their eyes, nose, or mouth.

Below is a list of resources to learn more about COVID-19, how it spreads, prevention and treatment, and related information:

According to the CDC, older adults and people who have severe underlying chronic medical conditions like heart or lung disease, or diabetes seem to be at higher risk for developing more serious complications from COVID-19. Click here for more information.

COVID-19 & Your Employment

As an employee, you may have many questions about how the COVID-19 pandemic impacts your employment. For example, you may be wondering what happens if your child’s school is canceled because of the pandemic and you must stay home to care for him or her? Is your job protected during this time? Are you eligible for paid time off?

You may also have questions about whether your job will be protected should you or one of your family members become ill because of COVID-19. You may also be wondering if you will continue to have to report to work or whether telecommuting or other arrangements to limit exposure are options. What happens if you catch COVID-19 while on a work trip – are you covered by workers’ compensation? The purpose of this post is to make it easier to understand answers to these questions and to direct you to available resources.

In this regard, several agencies are working hard to keep workers, employers, and families safe during this pandemic by providing guidance and resources. In addition to the CDC and the World Health Organization (“WHO”), the following agencies are providing workplace-specific guidance: Labor & Workforce Development Agency (“LWDA”), Cal/OSHA, and the Equal Employment Opportunity Commission (“EEOC”).

A Safe Workplace for All Employees

Workplace safety and health regulations in California require employers to protect workers from airborne infectious diseases such as COVID-19. Cal/OSHA has posted guidance to provide workers information on how to protect themselves.

Cal/OSHA recommends employers follow the recommendations from the CDC, some of which are included below:

  • Employees should be actively encouraged to stay home when sick
  • Employees with acute respiratory illness symptoms should be sent home immediately
  • Training should be provided on cough and sneeze etiquettehand hygiene, avoidance of sharing items, providing tissues, sanitizers, no-touch disposal cans, and related issues
  • Perform routine environment cleaning
  • Checking CDC’s Traveler’s Health Notices
  • Flexible worksites, telecommuting, and flexible work hours
  • Postponing or canceling large work-related meetings or events
  • Using other methods to minimize exposure
  • Washing facilities with an adequate supply of suitable cleaning agents, water, and single-use towels or blowers (which is required regardless of a pandemic)
  • Personal protective equipment

Your employer should be training you regarding the above, as well as ensuring you have a safe and healthy workplace. If there is a significant risk of exposure at your normal workplace, your employer must implement measures to prevent or reduce the hazard, including by possibly implementing telecommuting or other flexible arrangements.

Benefits & Rights for Employees Impacted by COVID-19

If you are impacted by COVID-19, what rights and benefits are you entitled to in the workplace? The answer to this question may be confusing. For example, what benefits are you entitled to if you are unable to work because of a medical quarantine or illness related to COVID-19?

Fortunately, the LWDA has created a centralized source of information to make it easier for workers to understand what resources and benefits they may be entitled to. However, for questions about leave-entitlements and pay, the first thing you should do if you are impacted by COVID-19, is to contact your employer’s human resources department to determine what employer-sponsored benefits you may be entitled to. You then want to learn about state-sponsored and related benefits, as detailed in the LWDA’s Summary Chart: Benefit for Workers Impacted by COVID-19.

For example, if you are unable to work because you are caring for an ill or quarantined family member with COVID-19 (certified by a medical professional), under the Paid Family Leave program, you may be entitled up to six weeks of benefit payments if you have a full or partial loss of wages. In this scenario, the amount of benefits is approximately 60 to 70 percent of wages (depending on income). The LWDA’s chart at the link above provides more information to make it easier to understand what resources may be available.

If you are an employee with a disability that puts you at high risk for complications with COVID-19 (e.g., an autoimmune disease, HIV, cancer, etc.), pursuant to the EEOC’s guidance, you may request telework or other options as a reasonable accommodation to reduce your chance of infection during a pandemic. Similarly, if you or a close family member becomes sick because of COVID-19 and are unable to work for a limited period, you may be eligible for job protection under federal and/or state leave laws (e.g., the Family Medical Leave Act) and anti-discrimination laws (e.g., the Fair Employment and Housing Act). In this scenario, you should contact an experienced employment law attorney, to better understand your rights.

What happens if you contract COVID-19 while at work or at a work-sponsored event? Will this result in a compensable workers’ compensation claim? It depends. The workers’ compensation system is a no-fault system, meaning if you suffer a workplace injury, you do not need to prove negligence on the part of the employer. Instead, you need only prove that the injury occurred at work and was proximately caused by your employment. However, determining whether the illness is “occupational,” and arose “out of and in the course of employment,” will need to be determined on a case-by-case basis. In this scenario, you should contact an experienced workers’ compensation attorney, to better understand your rights.

Below is a list of additional support services for workers:

What Can My Employer Ask Me to Do?

Can my employer send me home without pay if I display symptoms of COVID-19?

Yes. Generally, employers may not make an employee stay home without pay for a standard cold or flu, unless the employer can show the employee is a “direct threat” due to the medical condition or that the employee’s ability to perform essential job functions is impaired by the medical condition. Pursuant to the EEOC’s guidelines, assessment of whether an employee is a direct threat in the workplace must be based on objective facts. It cannot be based on irrational fears. However, during a “pandemic,” such as the current COVID-19 pandemic, the EEOC directs employers to rely on the latest CDC health assessments. Several state and local health organizations, including the CDC and Cal/OSHA, have issued assessments advising employers to send employees home if they show any symptoms of COVID-19.

Can my employer ask me questions to determine whether I have a compromised immune system or a chronic health condition?

No. An employer cannot ask a disability-related question where the response is likely to disclose the existence of a disability. Asking whether you have a compromised immune system may elicit a response disclosing a disability (e.g., HIV, cancer, etc.). However, an employer may ask if you are experiencing symptoms of COVID-19, such as a sore throat, fever, chills, and shortness of breath. Employers may give employees an ADA-Compliant Pre-Pandemic Employee Survey, however, to anticipate absenteeism during a pandemic.

If I travelled, may my employer require me to stay home for the virus’s incubation period, which is reportedly up to 14 days?

It depends. An employer may ask if you travelled to specific locations that the CDC has identified as high risk areas, and if you travelled to one of those locations, your employer may require you to stay home until it is clear you do not have pandemic influenza symptoms. If travelling, check the CDC’s Traveler’s Health Notices and CDC’s Travel Information Page for latest guidance. If you feel you may have been exposed to COVID-19, the CDC has issued guidance for how to conduct a risk assessment of potential exposure.

Your employer may not make determinations of risk based on your race, age, disability, or country of origin. Doing so could subject the employer to liability under the laws prohibiting discrimination.

If you or a family member have been impacted by COVID-19, and you feel your workplace rights have been taken advantage of, feel free to contact the workplace attorneys at Haeggquist & Eck, LLP.

If You Need an Attorney, Call Haeggquist & Eck, LLP

Our firm is dedicated to helping employees assert their rights. If you feel your rights as an employee were violated by an employer who took advantage of the confusion during the COVID-19 outbreak, reach out to Haeggquist & Eck, LLP for help.

Contact our firm online or call (619) 342-8000 to schedule a free consultation with one of our attorneys who may be able to help you.

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