COVID-19 FAQ

The COVID-19 crisis has caused tremendous hardship for California’s workers. As businesses shutter or reduce their services and operations, employees face layoffs, heightened health risks in the workplace, and great uncertainty about their futures.

Hunter Pyle Law has compiled the FAQ below to help you understand your rights in the workplace during the COVID-19 era. We will continue to revise this FAQ and add additional articles to the firm’s blog as we receive further questions from workers.

If you believe your rights may have been violated, please do not hesitate to contact our office for an interview at (510) 444-4400 or inquire@hunterpylelaw.com.

We are dedicated to protecting the rights of all employees.

What are your rights as an employee during COVID-19?

You have the right to a “safe and healthful workplace.”

California law guarantees all employees the right to “employment and a place of employment that is safe and healthful for the employees therein.” (Cal. Labor Code section 6400.) From this right flow several others, discussed below.

You have the right to refuse to work due to unsafe conditions.

Accordingly, if your employer failed to require your co-workers to wear face coverings, endangering your health and safety, your employer could not lawfully terminate you for refusing to work until your co-workers wore face coverings.

More information about your right to refuse to work due to unsafe conditions can be found here.

You have the right to express any concerns you may have about the safety of your workplace.

You have the right not to return to work while a public health order restricting your workplace is in effect.

You also have the right not to return to work before your local government has lifted any lockdown restriction on your place of employment. Under California law, an employer cannot lawfully terminate an employee for refusing to perform some task that would be unlawful. This means that if the State of California or your local government has imposed COVID-19 restrictions that limit your ability to go into work, your employer cannot lawfully force you to come in. However, because COVID-19 public health orders include many exceptions and because these orders are always changing, employees should strongly consider consulting an attorney before refusing to return to work in reliance on a public health order.

What are your rights as an employee if you test positive for COVID-19?

If you test positive for COVID-19, your employer must send you home immediately. The CDC recommends that employees with COVID-19 symptoms isolate at home until: (1) at least 10 days have passed since symptom onset; (2) at least 24 hours have passed since resolution of fever without the use of fever-reducing medication; and (3) other symptoms have improved. Your employer may require you to stay home until you have met these requirements.

Employees who become ill with COVID-19 and are sent home may be eligible for several types of paid sick leave.

California Paid Sick Leave under California Labor Code Section 246

If you have worked at least 30 days for your employer in the past year, you should have accrued paid sick leave. California law mandates that all such employees accrue at least one hour of paid sick leave for every 30 hours worked. This leave may be used if you test positive for COVID-19 and are required to stay home.

Federal paid sick leave under the Families First Coronavirus Response Act (FFCRA)

The FFCRA provides up to 80 hours of paid sick leave at an employee’s regular rate of pay or minimum wage. In order to receive paid sick leave under the FFCRA, the leave must be taken to seek a medical diagnosis or if a healthcare provider advises you to self-quarantine. Paid sick leave benefits under the FFCRA cannot exceed $511 per day or $5,110 total. If you have already accrued paid sick leave, your employer must provide the FFCRA sick leave in addition to the existing leave.

The FFCRA only applies to private-sector employers with fewer than 500 employees. In order to be eligible, you must be unable to work or to telecommute for any of the following reasons:

(1) You are subject to a federal, state, or local quarantine isolation order related to COVID-19;
(2) You have been advised by a healthcare provider to self-quarantine related to COVID-19;
(3) You are experiencing COVID-19 symptoms and seeking a medical diagnosis;
(4) You are caring for an individual subject to a self-quarantine order or caring for a child whose school or daycare is closed for reasons related to COVID-19; or
(5) You are experiencing a substantially similar condition specified by the Secretary of Health and Human Services (as of October 16, 2020, the Secretary of Health and Human Services had not identified any such substantially similar condition).

More information on the Families First Coronavirus Response Act (FFCRA) is available here.

California COVID-19 Supplemental Paid Sick Leave for Food Sector and Healthcare/Emergency Workers

California law now provides for up to two weeks of COVID-19 supplemental paid sick leave for qualified employees who work (1) within a food sector; (2) as a healthcare provider; or (3) as an emergency responder.

On April 16, 2020, Governor Newsom issued an executive order requiring private employers with 500 or more employees in the United States to provide COVID-19 supplemental paid sick leave to “food sector workers.” Full-time employees of these entities are entitled to 80 hours of supplemental COVID-19 paid sick leave, while part-time employees are entitled to the total number of hours they are normally scheduled to work over two weeks. Employers are required to pay this sick leave in addition to any sick leave the employee has accrued. Governor Newsom’s executive order was signed into law and codified as Labor Code section 248.1 on September 9, 2020.

On the same day, Governor Newsom also signed into law Labor Code section 248.1. Section 248.1 entitles healthcare providers and emergency responders to the same COVID-19 supplemental paid sick leave “food sector workers” are entitled to under Section 248.

Workers’ Compensation for Temporary Disability

California employees are generally eligible to receive workers’ compensation benefits if they become unable to work due to an occupational injury occurring on the job.

On September 17, 2020, Governor Newsom signed into law SB 1159, which creates several rebuttable presumptions that an employee’s illness with COVID-19 is an occupational injury. An employee is presumed to have contracted COVID-19 in the course of employment if: (1) The employee tested positive or was diagnosed within 14 days after the employee last worked; and (2) The last day the employee worked was after March 19, 2020. If the employee’s last day worked was between March 19 and July 5, 2020, the employee’s COVID-19 diagnosis must additionally have been made by a licensed physician or state-licensed physician’s assistant or nurse practitioner.

If the above presumptions apply to you and other specified criteria are met, you may be eligible for workers’ compensation benefits. While Hunter Pyle Law is not qualified to offer representation for workers compensation claims, if you believe you may have such a claim related to COVID-19, we will gladly refer you to a qualified attorney.

Legally, can you refuse to return to work if you have a pre-existing condition that puts you at high-risk for COVID-19?

It depends. The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) both prohibit employers from discriminating against employees due to a disability. This means that employers cannot take an adverse employment action against you—fire, demote, etc.—due to a disability you have, so long as you can perform your work duties with reasonable accommodations.

If you have a pre-existing condition that puts you at heightened risk for COVID-19, it is critical that you ask your employer for reasonable accommodations. One such reasonable accommodation might be working remotely from the safety of your home. Reasonable accommodations might also include working in a private office space or your employer taking additional safety precautions on your behalf. If you are able to perform the essential duties of your job while working remotely from the safety of your home, your employer cannot terminate you solely because your pre-existing condition dictates that you work from home.

However, employers are not required to provide accommodations that are unreasonable or that impose an undue hardship on their business. For instance, if you are unable to perform the essential functions of your job while working from home and you refuse to return to work, your employer may lawfully terminate your employment even if you have a pre-existing condition that puts you at heightened risk for COVID-19.

Can your employer require you to disclose your COVID-19 test results?

It depends. If you believe you have contracted COVID-19 or are experiencing symptoms, you should take leave and self-isolate at home. If you are entitled to paid sick leave under the Families First Coronavirus Response Act (FFCRA) and seek leave to secure a medical diagnosis, your employer cannot demand to see your test results before granting sick leave.

However, if you are returning to work after taking leave or after your employer closed its place of business due to a public health order, your employer may take certain steps to ensure the health and safety of its employees and customers. For instance, your employer may require you to provide a doctor’s note certifying your fitness for duty. Your employer may also administer a COVID-19 test to detect the presence of the COVID-19 virus or take your temperature. Your employer may not, however, require you to take an antibody test before returning to work.

What do you do if COVID-19 leaves you laid-off and unemployed?

If you are laid off due to COVID-19, consider applying for Unemployment Insurance. California’s Unemployment Insurance system is not a welfare or entitlement program. Instead, it is funded by a tax your employer pays on all of your wages.

In order to be eligible for California Unemployment insurance, you must be: (1) Unemployed through no fault of your own; (2) Physically able to work; (3) Available for work; and (4) Ready and willing to accept work immediately. Depending on how much you earned in the previous twelve months, you may receive between $40-$450 in benefits per week.

Additionally, on August 21, 2020, California was approved to participate in the federal Lost Wages Assistance (LWA) program, which provides supplemental payment of $300 per week for a minimum of 3 weeks. To be eligible you must be eligible to receive $100 in benefits and provide a self-certification that your unemployment is due to COVID-19.

The California Employment Development Department, which administers the state’s Unemployment Insurance program, has published information on how to apply for Unemployment Insurance here: https://unemployment.edd.ca.gov/guide/how-to-apply.

What are your rights as an employee if one of your co-workers tests positive for COVID-19?

If one of your co-workers tests positive for COVID-19, your employer must immediately send them home. California employers must provide all employees with “employment and a place of employment that is safe and healthful for the employees therein.” (Cal. Labor Code section 6400.) Businesses may choose to suspend operations when there is an of COVID-19 in the workplace, but they are not required to.

(1) The employee tested positive or was diagnosed within 14 days after the employee last worked; and
(2) The last day the employee worked before his or her diagnosis was after March 19, 2020. Additionally, if the employee’s last day worked was between March 19 and July 5, 2020, the employee’s COVID-19 diagnosis must have been made by a licensed physician or state-licensed physician’s assistant or nurse practitioner.

Do you have the right to know which of your co-workers are infected or recovered from COVID-19?

Unfortunately, you do not have the right to know which of your co-workers are infected or recovered from COVID-19. Under the Americans with Disabilities Act (“ADA”), employers may gather certain information about the health of their employees. For instance, employers may take the temperatures of employees and ask whether employees are experiencing symptoms of COVID-19 or have had contact with anyone diagnosed with COVID-19. However, employers must maintain this information as a confidential medical record. Employers are prohibited from disclosing any of this information to other employees.

Do any kind of health care workers right now get hazard pay due to COVID-19?

Unfortunately, neither Congress nor the California Legislature has funded any kind of hazard pay for frontline healthcare workers. The HEROES Act passed by the House of Representatives includes hazard pay, but it has not been passed by the Senate.

Additionally, providing hazard pay may help build trust among employees and improve the company’s image from a public relations perspective. Strictly speaking, however, employers are not at the moment required to provide hazard pay to essential workers facing heightened risk for COVID-19.

Healthcare workers who contract COVID-19 may be entitled to supplemental paid sick leave. On April 16, 2020, Governor Newsom signed into law Labor Code section 248.1, requiring private employers with 500 or more employees in the United States to provide supplemental paid sick leave to healthcare providers and emergency responders. Full-time employees are entitled to 80 hours of supplemental COVID-19 paid sick leave, while part-time employees are entitled to the total number of hours they are normally scheduled to work over two weeks. Employers are required to pay this sick leave in addition to any sick leave the employee has accrued.

How can an employee fight for a severance if he/she has been laid off during COVID-19?

Under California law, employers are not required to provide terminated employees with severance. Companies may, however, have their own internal policies regarding severance. If you believe your employer may have such a policy, you should ask for a copy.

In general, an employer will offer severance in exchange for you agreeing to waive any legal claims you may have against your employer. If you believe your employer may have violated the law, whether in the course of your work for them or in the manner in which you were laid off, it is important to speak with an attorney before signing the severance agreement and waiving your potential claims.

COVID-19 FAQ

If you believe your rights may have been violated, please do not hesitate to contact our office for an interview at (510) 444-4400 or inquire@hunterpylelaw.com.

We are dedicated to protecting the rights of all employees.

What are your rights as an employee during COVID-19?

You have the right to a “safe and healthful workplace.”

You have the right to refuse to work due to unsafe conditions.

Employers may not terminate or lay off workers who refuse to work because of unsafe conditions. For instance, the California Department of Health has issued guidance that employers must require all employees to wear face coverings in the workplace. Additionally, medical professionals have widely recognized that wearing a face covering is a simple yet important step for mitigating the risk of COVID-19. Accordingly, if your employer failed to require your co-workers to wear face coverings, endangering your health and safety, your employer could not lawfully terminate you for refusing to work until your co-workers wore face coverings.

More information about your right to refuse to work due to unsafe conditions can be found here [hyperlink to “Can They Fire Me for Complaining About Coronavirus? Your Right to a Safe Workplace in California”: https://live-hunterpylelaw.pantheonsite.io/2020/05/can-they-fire-me-for-for-complaining-about-coronavirus-your-right-to-a-safe-workplace-in-california/].

You have the right to express any concerns you may have about the safety of your workplace.

Your employer also cannot lawfully terminate you for voicing concerns that your workplace puts you at risk for contracting COVID-19. Two separate sections of the California Labor Code protect workers who raise health and safety concerns in the workplace. More information on California’s whistleblower protections can be found here [hyperlink to “Can They Fire Me for Complaining About Coronavirus? Your Right to a Safe Workplace in California”: https://live-hunterpylelaw.pantheonsite.io/2020/05/can-they-fire-me-for-for-complaining-about-coronavirus-your-right-to-a-safe-workplace-in-california/].

You have the right not to return to work while a public health order restricting your workplace is in effect.

What are your rights as an employee if you test positive for COVID-19?

Employees who become ill with COVID-19 and are sent home may be eligible for several types of paid sick leave.

California Paid Sick Leave under California Labor Code Section 246

Federal paid sick leave under the Families First Coronavirus Response Act (FFCRA)

The FFCRA only applies to private-sector employers with fewer than 500 employees. In order to be eligible, you must be unable to work or to telecommute for any of the following reasons: (1) You are subject to a federal, state, or local quarantine isolation order related to COVID-19; (2) You have been advised by a healthcare provider to self-quarantine related to COVID-19; (3) You are experiencing COVID-19 symptoms and seeking a medical diagnosis; (4) You are caring for an individual subject to a self-quarantine order or caring for a child whose school or daycare is closed for reasons related to COVID-19; or (5) You are experiencing a substantially similar condition specified by the Secretary of Health and Human Services (as of October 16, 2020, the Secretary of Health and Human Services had not identified any such substantially similar condition).

More information on the Families First Coronavirus Response Act (FFCRA) is available here.

California COVID-19 Supplemental Paid Sick Leave for Food Sector and Healthcare/Emergency Workers

Workers’ Compensation for Temporary Disability

California employees are generally eligible to receive workers’ compensation benefits if they become unable to work due to an occupational injury occurring on the job.

Legally, can you refuse to return to work if you have a pre-existing condition that puts you at high-risk for COVID-19?

Can your employer require you to disclose your COVID-19 test results?

What do you do if COVID-19 leaves you laid-off and unemployed?

What are your rights as an employee if one of your co-workers tests positive for COVID-19?

If you become sick with COVID-19, and you believe you contracted the illness either from a co-worker or while at work, you may be entitled to receive workers’ compensation for the time you are out from work. California employees are generally eligible to receive workers’ compensation benefits if they become unable to work due to an occupational injury occurring on the job. On September 17, 2020, Governor Newsom signed into law SB 1159, which creates several rebuttable presumptions that an employee’s illness with COVID-19 is an occupational injury. An employee is presumed to have contracted COVID-19 in the course of employment if: (1) The employee tested positive or was diagnosed within 14 days after the employee last worked; and (2) The last day the employee worked before his or her diagnosis was after March 19, 2020. Additionally, if the employee’s last day worked was between March 19 and July 5, 2020, the employee’s COVID-19 diagnosis must have been made by a licensed physician or state-licensed physician’s assistant or nurse practitioner.

Do you have the right to know which of your co-workers are infected or recovered from COVID-19?

Do any kind of health care workers right now get hazard pay due to COVID-19?

Some employers have awarded small raises or bonuses to essential workers whose work puts them at heightened risk for contracting COVID-19. If your job places you at greater risk for contracting COVID-19, it may be worth asking your employer if they are willing to provide hazard pay. Doing so makes sense from a legal perspective. Employees agree to perform certain duties in exchange for a certain rate of pay. COVID-19 creates additional risks; therefore, it makes sense for employees to receive additional pay. Additionally, providing hazard pay may help build trust among employees and improve the company’s image from a public relations perspective. Strictly speaking, however, employers are not at the moment required to provide hazard pay to essential workers facing heightened risk for COVID-19.

How can an employee fight for a severance if he/she has been laid off during COVID-19?

Can They Fire Me for Complaining About Coronavirus? Your Right to a Safe Workplace in California

Hunter Pyle Law has received a number of calls from workers who are being targeted for retaliation after complaining that their workplace was not safe during the COVID-19 pandemic. This post explores some of the California laws that protect such workers. In short, as explained below, workers in California who speak out against unsafe conditions in the workplace, including unsafe conditions related to wearing masks and/or not being allowed to work from home, may be protected by three different sections of the California Labor Code.

Cal. Labor Code section 6310

California Labor Code section 6310 makes it illegal to retaliate against employees who complain, either verbally or in writing, either to their employer or to the government about unsafe working conditions or work practices. This section would in theory protect workers who complain that it is unsafe to work without masks, for example, as well as workers who protest being forced to work at the office instead of from home during a pandemic.

In terms of remedies, section 6310(b) provides that any employee who prevails on a claim under section 6310 is entitled to reinstatement and back pay. Section 6310(c) goes further, providing that an employer may not retaliate against the family members of any person who has, or is perceived to have, engaged in any acts protected by section 6310

Cases interpreting section 6310 have clarified that this law applies to situations in which an employer makes an informal complaint to his or her supervisor. Initially, section 6310 was interpreted as being limited to formal complaints made by employees to the Division of Labor Law Enforcement. See Division of Labor Law Enforcement v. Sampson (1976) 64 Cal.App.3d 893. However, after the Sampson decision the Legislature amended section 6310 to add complaints made to employers. (Stats. 1977, ch. 460, § 1, p. 1515, italics added.)

As a result, later decisions have recognized that oral and written complaints to employers are protected under section 6310. See Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109. Additionally, workers need not be right about their complaints as long as they have a good faith belief in them. See, e.g., Cabesuela, 68 Cal.App.4th at 109, in which the court agreed with the holding in Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299-300 that, “… an employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe.” (italics added, fn. omitted.) In other words, section 6310 protects employees from discharge for good faith complaints about working conditions which they believe to be unsafe, even if the employees are wrong.

Finally, workers are not limited to complaints that are based on OSHA standards or orders. Hentzel, 138 Cal.App.3d at 299–300. Nor are they required to proceed before the Labor Commissioner. Cabesuela, 8 Cal.App.4th at 109. Rather, they have a direct right of action and can file their claims in court. Id.

Cal. Labor Code section 6311

Section 6311 protects workers who refuse to work because of unsafe conditions. In order to fall within the protection of section 6311, a work action must meet the following requirements:

The work must violate the Labor Code, including section 6400, or any occupational safety or health standard, or any safety order of the division or standards board; and
The violation must create a real and apparent hazard to the employee or his or her fellow employees.

Section 6311 on its face applies only to discharges and layoffs. The remedies provision specifies that an employee who is not paid because of his or her refusal to perform work “in the performance of which this code, any occupational safety or health standard or any safety order of the division or standards board will be violated and where the violation would create a real and apparent hazard to the employee or his or her fellow employees” has a right of action for wages for the time the employee is without work as a result of the layoff or discharge.

Cal. Labor Code section 1102.5

Finally, section 1102.5 may also protect workers who raise health and safety concerns. Section 1102.5 is addressed in more detail in other posts on this blog, but the basic provisions are as follows:

First, subsection (a) provides that employers cannot take steps to prevent employees from disclosing information that the employees believe discloses the violation of a law, rule, or regulation. That subsection reads as follows:

(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Next, subsection (b) prevents employers from retaliating against employees who “blow the whistle” by complaining about unlawful conduct in the workplace. It reads as follows:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Last, subsection (c), like Labor Code section 6311, protects workers who refuse to perform work that would result in the violation of a law, rule, or regulation. Unlike section 6311, it does not appear to be limited to discharge or layoff. Thus, a worker who is retaliated against but not actually fired may wish to consider bringing a claim under section 1102.5(c) instead of section 6311:

(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

If you have questions about your right to a safe and healthy workplace, or if you have been retaliated against for standing up for your rights at work, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential initial intake process. We can be reached at (510) 444-4400, or at inquires@hunterpylelaw.com.

Expanded Rights for Employees during the COVID-19 Pandemic

The U.S. Department of Labor posted a temporary rule on April 1, 2020 that provides most employees impacted by the coronavirus with some much-needed benefits under the Families First Coronavirus Response Act (FFCRA). These benefits include public emergency health leave under Title I of the Family and Medical Leave Act (FMLA) and emergency paid sick leave to help out families dealing the effects of COVID-19.

Under FFCRA, employees who work for employers with less than 500 employees will be qualified for paid sick leave if an employee is unable to work or telecommute for one of the following reasons:

The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
The employee has been advised by a healthcare provider to self-quarantine related to COVID-19;
The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
The employee is caring for an individual subject to an order described in (1) or self-quarantine described in (2);
The employee is caring for a child whose school or place of care (such as a daycare) is closed or whose childcare provider is unavailable for reasons related to COVID-19; and
The employee is experiencing any substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

The FFCRA provides that employees are be entitled to up to 80 hours of paid sick leave at the employee’s regular rate of pay or minimum wage. Paid sick leave benefits under the FFCRA cannot exceed $511 per day or $5,110 total. If employers already have sick leave in place, they must provide the FFCRA sick leave in addition to the existing leave.

In addition to paid sick leave, an employee may also get an additional ten weeks of leave to care for an individual who has been quarantined, or to look after a child whose school or daycare is closed or unavailable due to reasons related to COVID-19. Employees would receive two-thirds of the employee’s regular rate of pay while on this extended leave or up to $200 per day or $10,000 total.

Employers with less than 500 employees are generally covered by FFCRA. Small businesses with fewer than 50 employees may be exempt from providing its employees with leave if a school or daycare is closed if the leave would jeopardize the viability of the business. These small businesses would have to apply for an exemption with the Department of Labor.

Employees of the federal government are entitled to FMLA leave, and are thus not covered by FFCRA. However, such employees are covered by the paid sick leave provision.

Part-time employees are eligible for a paid two week leave for the number of hours they worked on average in a two week period.

Employers are required to post a notice about employees’ rights under the FFCRA.

The temporary rule is in effect from April 2, 2020 until December 31, 2020. Paid sick leave provided under FFCRA does not carry over from one year to the next. Employees are also not entitled to reimbursement for unused leave upon separation from employment.

If you feel that you have issues related to taking leave in the workplace, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com. The attorneys and staff at Hunter Pyle Law are continuing to work remotely and take employee-related inquires by phone and email.