Employment Law

On March 11, 2020, The World Health Organization (“WHO”) declared COVID-19 a “pandemic.” About a month later, as of April 9, 2020, there have been more than 1.5 million confirmed cases of COVID-19, resulting in more than 90,000 deaths. The numbers continue to rise by the minute. As of March 30, 2020, at least 30 states and the District of Columbia have implemented temporary stay home orders due to COVID-19. The stay home orders are not only vital to slow the spread of the virus, but to keep workers safe and healthy.

What if, however, you work in an “essential” business that is exempt from the stay home orders, or your employer is otherwise requiring you to report to the worksite during the pandemic and you don’t feel safe or comfortable? What are your rights?

Essential Workers Excluded from Stay-Home Orders

Essential workers are excluded from State and local stay-home orders, including California’s and San Diego’s stay home orders. These orders exclude workers in essential infrastructure industries as outlined by the federal Cybersecurity and Infrastructure Security Agency (“CISA”). To date, unlike other workers, those in essential businesses, have not been ordered to stay home. The federal Centers for Disease Control and Prevention (“CDC”) has also advised that essential workers may be permitted to continue to work to ensure continuity of operations of essential functions, even following potential exposure to COVID-19.

With that said, the CISA guidance is not binding and is not an executive action mandating essential workers report to work. Likewise, nothing in California’s stay-home order mandates essential workers “must” report to work – it simply excludes them from the stay home order. Thus, despite the societal and practical needs for essential workers to report to work to ensure continuity of operations of essential functions (e.g.,food, healthcare, etc.), if the workplace is objectively unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of the Occupational Safety and Health Administration (“OSHA”) and California’s labor laws, such as Labor Code §§6400, 6402 (“No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”). No employee, particularly those who did not choose to work in a normally dangerous occupation, should have to choose between their health and safety (up to and including death) or losing their job.

Employers Must Provide a Healthy & Safe Work Environment

Whether there is a pandemic or not, employers are required to provide a safe and healthy workplace in compliance with OSHA regulations. With respect to COVID-19, at a minimum, employers are expected to follow guidance from the CDC and OSHA, as well as State and local government guidelines, regulations, and orders, to maintain a safe workplace. Precautions must be taken to limit exposure to COVID-19, including infection prevention measures and response protocols as outlined by OSHA in its Guidance on Preparing Workplaces for COVID-19.

Extra precautions should be taken for employees who are at-risk for developing more serious complications from COVID-19 (e.g., older adults and people who have severe underlying chronic medical conditions like heart or lung disease, or diabetes). If your employer is not taking reasonable safety precautions, it could be in violation of OSHA and California’s labor laws.

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, contact the attorneys at Haeggquist & Eck, LLP by calling (619) 342-8000 to learn more about your rights.

Short Answer: As with many legal questions, “it depends.”

Long Answer: Your individual circumstance will dictate whether you may have a legal right to refuse to work because of COVID-19. There are several circumstances wherein you may have a legal right to refuse to work because of COVID-19. There are other circumstances wherein your refusal to work because of COVID-19 may not be legally protected. This post provides examples of a few common scenarios to help clarify the varying circumstances.

Example 1: You work in a non-essential business and, as such, you are required to stay home because of California’s and/or San Diego’s stay home orders relating to COVID-19. However, you can telework from home. Absent other considerations (explained in examples below), your employer may have a legal right to fire you if you refuse to work (assuming you are an at-will employee and your employer has complied with other standard legal requirements).

Example 2: You work in a non-essential business and, as such, you are required to stay home because of California’s and/or San Diego’s stay home orders relating to COVID-19. However, you can telework from home. But you are responsible for caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19, making it unfeasible for you to telework. Under this circumstance, you would most likely be eligible for job-protected paid leave under the new Families First Coronavirus Response Act. See our blog post here to learn more about your rights under this act. If your employer is requiring you to work despite this circumstance, and fires you for refusing to work, the firing may be unlawful. Similarly, if your employer is requiring you to work under the following circumstances, and fires you for refusing to work, the firing may be unlawful, if you are unable to telework because of these circumstances: (a) you have been advised by a health care professional to self-quarantine related to COVID-19; (b) you are experiencing COVID-19 symptoms and seeking medical diagnosis; (c) you are caring for someone described in (a) or (b); or (d) some other extenuating circumstance makes it infeasible to telework (e.g., power outage).

Example 3: You work in a non-essential business and, as such, you are required to stay home because of California’s and/or San Diego’s stay home orders relating to COVID-19. However, in violation of the stay home orders, your employer is forcing you to report to the worksite during the pandemic. A willful violation of California’s stay home order is a misdemeanor in violation of Government Code §8665. As such, if your employer fires you for refusing to report to the worksite in this scenario, you may have a wrongful termination claim.

Example 4: You work in an “essential” business that is exempt from the stay home orders and, thus, your employer is requiring you to report to the worksite. If you refuse to work because of COVID-19 in this circumstance, whether your employer can legally fire you may depend on the specific nature of your job and how safe and healthy your employer is making the workplace. Whether there is a pandemic or not, employers are required to provide a safe and healthy workplace in compliance with the Occupational Safety and Health Administration (“OSHA”) regulations. With respect to COVID-19, at a minimum, employers are expected to follow guidance from the Centers for Disease Control and Prevention (“CDC”) and OSHA, as well as State and local government guidelines, regulations, and orders, to maintain a safe workplace. Precautions must be taken to limit exposure to COVID-19, including infection prevention measures and response protocols as outlined by OSHA in its Guidance on Preparing Workplaces for COVID-19. Extra precautions must be taken for employees who are “at risk” for developing more serious complications from COVID-19 (e.g., older adults and people who have severe underlying chronic medical conditions like heart or lung disease, or diabetes). The preventative measures and protocols implemented may vary from employer to employer, depending on the nature of the workplace and job. For example, the necessary precautions needed at a worksite with high person-to-person contact (e.g., a grocery store) may be different than that of a small accounting office. But all worksites must be safe and healthy.

Despite the societal and practical needs for essential workers to report to work to ensure continuity of operations of essential functions (e.g., food, healthcare, etc.), if the workplace is objectively unsafe or unhealthy, and your employer is nevertheless forcing you to report to work, it could be in violation of OSHA and California’s labor laws, such as Labor Code §§6400, 6402 (“No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”). If the workplace is not safe in violation of OSHA regulations, it may be unlawful for your employer to fire you for refusing to work.

If you feel your employer is forcing you to work in an unsafe or unhealthy workplace, contact attorneys at Haggequist & Eck, LLP to learn more about your rights.

Associate Robert Prine explains how the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act, will benefit taxpayers and how you should put it to use.

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.