This week’s question comes from Carl who writes:
Q: “Last week I was at a dinner party and one of the people who attended eventually got sick and was told they may have Coronavirus. However, he has not been tested. I feel fine, but I called my doctor to see what I should do. She said that I absolutely must self-quarantine for at least two weeks. I work in an office and I don’t have very much sick time to cover me and I am afraid I will lose my job. Can they fire me if I don’t come in?”
A: Carl, I am sorry to hear that you have come in direct contact with somebody that may be positive for Covid-19 (the coronavirus). This is a very trying time for all of us. Employers and employees are each attempting to cope with the many changing disruptions. You should know that in California, you have a number of protections if you need to take time off because of a health condition.
All California employees accrue sick time at their jobs. At a minimum, an employee must accrue one hour of paid sick leave for every 30 hours worked. For a regular full-time employee, that works out to about 1.3 hours a week or 5.3 hours each month. You may use this leave for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or a family member.
You mentioned that you did not have a lot of sick time remaining. Employers in California are required to track sick time on your paystub. You should be able to review your paystub to see if the sick time is accruing correctly, and also, exactly how much time you have available to you.
Currently, in San Francisco, they are attempting to implement an additional 5 days of paid leave for San Francisco workers affected by Covid-19, as well as support for businesses. However, that has not yet gone into effect.
The California Family Rights Act (CFRA) also allows leave for health issues. However, not all employers or employees are covered by this law.
An employer is a covered entity under the CFRA leave if they have more than 50 employees in a 75-mile radius of your worksite. Roughly, if there are 50 or more employees in the Bay Area, with a few specific exceptions, they are likely a covered employer. In order for an employee of a covered entity to have leave rights under the CFRA, the employee must have worked for that employer for at least 1 year and must have worked 1250 hours within the last 12 months. That works out to an average of just over 24 hours a week.
If each of the eligibility requirements are met, the CFRA allows an employee to take up to 12 weeks of leave for a number of issues including the employee’s own serious health condition or the serious health condition of a spouse, child, or parent.
I would argue that because your primary health care provider instructed you to stay home, that you are covered under this law and would be entitled to leave. It may also be considered a request for an accommodation given that you are being regarded as a person with a disability. However, since you do not currently have symptoms, others may argue differently. Best practices would be to get the stay-at-home instruction from your doctor in writing and provide that to your employer when requesting the leave.
Your employer can require that you use up your sick leave and any vacation time you have prior to implementing this leave. In your case, since you believe you don’t have much sick time left, it would be another source of potential leave, however, it is not paid leave.
At this point, if you are forced to stay home longer than 2 weeks and are on unpaid leave, you may contact the Employment Development Department regarding the possibility of receiving unemployment insurance benefits.
If you do take eligible leave, the law protects you from retaliation. You cannot be lawfully fired for taking leave for which you are entitled. Unfortunately, many businesses are also hurting from the effects of the coronavirus. If an employer is forced to conduct layoffs, they are prohibited from using either the fact of your CFRA leave or a request for an accommodation or leave as a basis for determining which employees will be laid off. If a business goes out of business completely, employees may have little recourse other than to seek unemployment insurance.
This is a difficult time for all of us and I hope you all stay safe and know that there are protections for employees like you who are forced home for the good of their own health and the health of public.
If you take eligible leave and do suffer retaliation or a termination because you took that leave, you should immediately contact a qualified employment attorney like those at Dolan Law Firm P.C.