Employment Law

Written by: Christopher B. Dolan

Today’s question comes from Darlene in the Excelsior who asks: “I have been really scared during Covid about losing my job. For the last 2 years I have worked in a relatively small company, with 20 employees, and I have to have a surgery for a total knee replacement soon. I have delayed because of Covid but I can’t put it off much longer. My doctor told me that as soon as the number of Covid cases goes down I should be scheduled for surgery. My company has a lot of workers younger than I am, and I am afraid they may replace me with a younger person who doesn’t have health issues. I also have asthma and I have been very careful to socially distance myself. I am deemed an, “essential worker,” and don’t have the luxury of working from home. I don’t trust my company (in case you hadn’t picked up on that) and I know one of my co-workers had Covid and they didn’t tell us. I found out through his teammate. What are my rights to take time off for my knee surgery and what obligation does my employer have to tell me when someone gets sick with Covid?”

Dear Darlene: These are some very stressful times and with so many people unemployed, I can see why you would be concerned about your job and your right to seek health care, as well as want to know if you have been exposed to Covid. Starting with your need to take time for your knee replacement, I can say that the delay due to Covid has worked in your favor.  

Under the California Family Rights Act (CFRA), California’s version of the Family Medical Leave Act (FMLA), you would not have qualified for a job-protected medical leave for your knee surgery in 2020, but you will qualify in 2021. Currently, under CFRA if you have worked for an employer for 1250 hours or more during the last 12 months, you may take up to 12 weeks of unpaid leave (all at one time, or intermittently) for a serious health condition of yourself, your parents, children, spouse or registered domestic partner. CFRA leave doesn’t have to be taken all at once. An employee may take intermittent leave, if needed. Additionally, any parent may also take CFRA leave to bond with a newborn child. Prior to 2021, only employers with 50 or more employees within a 75 mile radius had to provide this leave. Starting January 2021, the law has changed (Fair Employment and Housing Code Section 12945.2) to require employers with 5 or more employees to grant CFRA (with certain limited exceptions) to a worker for themselves or a child, parent, grandparent, grandchild, sibling, spouse or domestic partner. Therefore, the law now has a much broader reach both in the number of employers who will be obligated to grant CFRA and the scope of the relationship to the employee, which has now been expanded to include grandparents, grandchildren and siblings. 

When possible, an employee must request CFRA leave within a reasonable period of time in advance of the anticipated leave. An employee, “shall,” make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer. In case of an emergency, no notice is required before taking leave, but a prompt request must be made to the employer as soon as possible.  An employer may require that an employee’s request for leave be supported by a certification issued by the health care provider of the individual requiring care. When CFRA leave is granted, the employer must continue to pay the employer’s share of their medical insurance, the employee is still obligated to pay the employees portion, and the employer must, upon granting of the leave, provide an employee with a guarantee of employment in the same or a comparable position upon return. An employer can have a policy that requires the employee to obtain certification from the employee’s health care provider that the employee is able to resume work, so long as that policy is applied uniformly.

As to the second issue raised in your question, regarding an employer’s obligation to notify you if a co-worker has been diagnosed with COVID, the Labor Code was amended to add Section 6409.6, requiring an employer, within one business day of receiving notice of potential exposure, to provide written notice to all employee and subcontractors who were on the same premises or worksite as an infected person that they may have been exposed. The employer must also provide all exposed employees with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave (CFRA), supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee. The employer must also notify the employees of the disinfection and safety plan the employer plans to implement and complete per the federal guidelines of the Center for Disease Control and Prevention. The law also prevents an employer from retaliating against an employee for disclosing a positive Covid test or an order to quarantine or isolate. This law expires on January 1, 2023.

If you feel that your rights have been violated, make sure to document it in a verifiable manner (email, memo, text, etc.) and contact a good trial lawyer with expertise in employment cases for a consultation.  Our office has an employment law department that focuses on employee rights. 

Written By: Christopher B. Dolan and Mari Bandoma Callado

This week’s question comes from Elena in Dolores Heights, San Francisco who asks:

My child’s daycare had to close for a month due to COVID-19 exposure. I took time off from work to take care of my four-year-old. When I returned to work, my co-workers began treating me differently. They know about what happened at my child’s daycare. When I walk in a room, I see them whispering to each other and/or they leave the room altogether, as if to avoid me. One co-worker specifically asked me if I had the, “Kung-Flu.” I am Asian American and I was offended by this comment. Another co-worker said that it wasn’t fair that I got to take a, “month-long vacation.” I verbally complained to my manager about the racist remark and being treated differently by my co-workers and she assured me that she would take care of it.  

A couple of weeks later, my manager told me that I was being transferred to the graveyard shift. My manager knows that I cannot work that shift because I have a young child. I told her that this was not fair and that I thought I was being retaliated against for taking time off because of a COVID-19 closure of my child’s daycare and/or complaining about my co-workers’ racist remarks. She denied it and said that it was a business need, and that my options are switching to the graveyard shift or quitting. I believe she is singling me out. I have been working for this company for two years and have always had a great relationship with my manager prior to my complaints.  I don’t know what to do.  What are my rights? 

Dear Elena: I’m so sorry that this is happening to you in the midst of what already is such a difficult year. The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment based on race, national origin and disability (among others) in the workplace. The FEHA applies to public and private employers, labor organizations and employment agencies with five or more employees. Employees also have the right to be protected from retaliation for making a complaint or opposing a practice prohibited by the FEHA. Retaliation includes any adverse employment action taken in response to an employee’s complaint, including termination, demotion, pay reduction, job transfer and negative performance evaluation. In other words, your employer cannot punish you or treat you differently if you report race, national-origin or disability-based discrimination or harassment in the workplace. Employers who violate the FEHA’s anti-discrimination, harassment and retaliation provisions may be liable for damages including back pay, lost benefits, emotional distress, punitive damages, attorneys fees and costs, etc.

Your complaint to your manager regarding the, “Kung-Flu,” comment made by your co-worker and being treated differently by co-workers due to taking leave of absence are considered a protected activity under the FEHA as it is likely based on your race or national origin or as a perceived or associational disability (COVID-19 can be a disability, depending on how severe). Your manager forcing you to transfer to the graveyard shift would be considered an adverse employment action under the FEHA. The law requires proving a connection between these two things. The fact that this happened just two weeks after your complaint is some evidence that it is related to the protected activity.

Another source of protection may come from the Family First Coronavirus Response Act (FFCRA). The FFCRA, which expanded the Family Medical Leave Act (FMLA), covers leave and loss of income when an employee needs to care for children because of school or childcare closure and other leave related to COVID-19.  Employers with 500 or fewer employees are required to provide job-protected leave for employees who are unable to work (or telework) due to a need to care for the employee’s child (under the age of 18) if the child’s elementary or secondary school or place of childcare has been closed, or the childcare provider is unavailable due to the COVID-19 emergency. This applies to employees who have been employed by the employer for at least 30 calendar days. This means that employers are prohibited from discharging, disciplining, or otherwise retaliating against any employee who takes leave under the FFCRA. Employers who violate the FFCRA’s expanded FMLA provision may be liable for damages including back pay, lost benefits, emotional distress, attorneys fees and costs, etc.

Assuming your employment has 500 or fewer employees, your leave of absence to take care of your minor child during the daycare closure is protected by the FFCRA and retaliating against you with a transfer to a graveyard shift is in violation of the FFCRA. We recommend that you contact an employment attorney to best protect your rights and to ensure that you do not miss any filing deadlines.

Written By: Christopher B. Dolan and Kimberly E. Levy

Danny T. writes:

Q: “My wife and I both work. We have two young children. We just got word that our kids would be in distance learning for the beginning of the school year, maybe longer. We cannot afford to have either of us out of work while we homeschool our kids. We are worried that our kids won’t get the education they need because we have to work to make ends meet. Is there any help available?”

 A: Dear Danny T.,
During these uncertain times, many families find themselves in an incredibly difficult position without a safety net. Parents are forced to balance two critical needs:

1. providing for their families and
2. helping their children receive a quality education through active participation in distance learning.

Fortunately, there is some support available to help families negatively impacted by school closures and unavailability of childcare. On April 1, 2020, the Family First Coronavirus Response Act (FFCRA) took effect. The Act consists of two major components: 

1. Expansion of the Family Medical Leave Act (FMLA) until the end of December 2020, to cover leave and loss of income when an employee needs to care for children because of school or childcare closures and other leave related to COVID-19; and,
2. Establishment of the Emergency Paid Sick Leave Act which requires employers to pay an employee up to 80 hours (two weeks) of sick leave at a rate of two-thirds their normal rate of pay if the employee is unable to work due to COVID-19 related childcare needs.

Who is Eligible for Paid FMLA Leave?

Under the expansion, FMLA leave may be used to care for a minor child whose school or care provider is closed or unavailable due to COVID-19. In order to qualify, the employee must be the minor child’s parent (biological or adoptive), foster parent, legal guardian, or standing in loco parentis (a legal status). Additionally, the employee must have been employed for at least 30 calendar days. 

While typically paid leave is available to employees of companies with 50 or more employees, expanded FFCRA paid leave applies to all employers, unless subject to an exemption. Benefits under the expanded FMLA are available to teleworking employees as well as those working outside of the home.

What Benefits are Available under the Expanded FMLA?

The first two weeks of leave are unpaid, although the time may be covered by the Emergency Paid Sick Leave Act or other paid time off options already available through the employer. After the initial waiting period, the employer must pay the employee two-thirds of the employee’s normal rate of pay, up to a maximum of $200.00 per day for 10 weeks ($10,000). 

FMLA leave may be taken intermittently, allowing an employee to work part-time and care for their child(ren) part-time.
For example, if the employee/parent only needs to take 2-4 hours of leave per day, this arrangement is permissible under the act. 

The expanded act also requires employers to reinstate employees to their original position upon return from leave, with some exceptions for employers with fewer than 25 employees. For those smaller employers, reinstatement is required unless the position was eliminated due to economic conditions related to COVID-19. Those employers, however, must make efforts to reinstate the employee in an equivalent position.

 When electing to use FMLA leave, employees should give their employer as much notice as possible if the need for leave is known about in advance. To learn more about your rights under the FFCRA, click here. 

In addition to the federal protections provided by FFCRA, California recently passed the Workforce Innovation and Opportunity Act which provides funds to assist workers impacted by COVID-19. Under this act, Statewide Worker Supportive Services provides funding to underserved populations to help workers to pay for childcare, housing, utilities, and transportation.
There are two tiers of eligibility:

1. Individuals receiving at least 50 percent of their previous wages either from their employer directly or Unemployment Insurance (UI) benefit payments may receive supportive services totaling $400.
2. Individuals who are not receiving at least 50 percent of their wages from their employer directly or through UI benefit payments may receive supportive services totaling $800.

This program is administered through the local Workforce Development Board. To search for the closest board, click here. 

If you believe you were unlawfully denied paid leave or were terminated because you requested it, an employment attorney may be able to assist you. 

 —

Christopher B. Dolan is the owner of the Dolan Law Firm. Kimberly E. Levy is a senior associate attorney in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

Written By: Vanessa C. Deniston and Christopher B. Dolan

This week’s question comes from Mason H. who writes:

Q: “I am currently employed by a private company doing contracted work repairing roadways. I am considered an essential worker in California. As the sole breadwinner in my family, I am truly grateful to have steady work and I would never want to put my job in jeopardy. Lately, my manager has been encouraging everyone on my crew to get tested for COVID-19. I feel just fine, but I want to get tested as I am exposed to others on a daily basis. I am worried if I test positive for some reason that will give them cause to fire me. Should I be worried?”

A: Dear Mason, In this strange and challenging new economic reality, I completely understand your instinct to protect your job at all costs. Essential workers like you have to weigh economic survival against their own physical health and family’s safety. Given the ever-changing landscape of the virus and its effect on the economy, many employees are unclear about their rights and many employers are uncertain about their obligations. This can lead to irrational decision-making fueled by panic or fear.

Thankfully, the city of San Francisco has stepped up to address the problem and provide clarity. The City has drafted and introduced a new ordinance that offers special job protections for essential workers like you with respect to COVID-19 testing. The proposed ordinance would make it illegal for an employer to fire, threaten to fire, demote, suspend, discipline, reduce employee benefits or in any way discriminate against individuals who receive a positive COVID-19 test, show symptoms of the virus, or make a decision to quarantine after being exposed to the virus. Employers would not be able to question employees who do not appear ill about whether they have medical conditions that would make them more vulnerable to the virus. Though, employers could request medical exams for incoming employees as long as the policy is applied to all applicants.

These protections would also be extended to job seekers in San Francisco. Under the proposed new ordinance, employers could not ask applicants to be tested for the virus before extending job offers and could not rescind a job offer if the applicant test positive. Employers would be required to make reasonable accommodations for individuals who test positive for the virus or quarantine after suspected exposure.

This proposed legislation, should be signed into law, is a significant expansion of employee rights in San Francisco; previously, employees eligible for certain benefits through their employer (i.e. medical leave) could avail themselves from legal remedies. That is why this new proposed ordinance is vital for essential workers who have already used up their benefits or who never had them in the first place. It should be noted, however, the law would apply only to employers in San Francisco.

California employees outside of San Francisco must still look into the California Family Rights Act and the Americans with Disabilities Act for leave guidelines. Employees outside of San Francisco should also review their current city ordinances, as many cities across California have established their own additional protections for employees in light of COVID-19.

COVID-19 has handed employers a compelling “good faith business reason” for mass layoffs as they are struggling to stay afloat financially amid statewide closures. Many employers, however, are using the virus as an excuse to discriminate against and fire employees who test positive for the virus or elect to quarantine at home as a result of exposure. Such employers often claim they are “restructuring” or “downsizing” in light of statewide shutdowns. In such cases, the true reason, whether it be the fear of a potentially infected employee spreading the virus to others or a general unwillingness to accommodate employees that wish to err on the side of personal safety, is not always easy to establish from an evidentiary standpoint. The new ordinance, however, heightens the scrutiny on employers terminating essential workers and gives employees broader protections.

Many employees may still be skeptical about how The City actually will enforce this ordinance (if passed) and hold employers accountable. Under the law, the San Francisco Office of Labor Standards Enforcement would be tasked with investigating reported violations and would have the power to award certain remedies to affected employees, such as lost wages and job reinstatement. Civil penalties would be imposed on employers who violate the ordinance, ranging from $1,000 to $10,000+ depending on the number of violations committed, including a single violation of $1,000. Such penalties would only serve as a deterrent if employees consistently report suspected violations and the Office of Labor Standards Enforcement follows through on imposing penalties and awarding remedies.

If you believe you have been retaliated against or terminated because you tested positive for COVID-19 or because you elected to quarantine at home after suspected exposure, an employment attorney can assist you in reporting the violation to the San Francisco Office of Labor Standards and Enforcement and possibly pursue additional civil remedies on your behalf.

This week’s question comes from an Anonymous who asks:

Q: “I work in health care in the Bay Area as a physician. I don’t want to say too much as I am afraid I might get fired. I am frequently exposed to COVID-19 patients. I love my job and I am proud to be on the front lines helping people who are suffering. That’s why I became a doctor in the first place. What is different now is that we are literally laying our lives, and the lives of our families, on the line every day we go into this battle.

I’m willing to do that as long as I have the proper equipment. You wouldn’t send a soldier into war with a gun and no bullets, but we are being sent into work with inadequate PPE [Personal Protective Equipment] every day. I get that we have to make do with what we have but I know that there are stores of supplies which senior medical and administrative staff have diverted for themselves and their families.

I am also fearful that we are putting patient safety at risk. I brought this up and I was told to mind my own business if I knew what was good for me. I was told that I should not get involved with things that don’t concern me and that we had to re-use our PPE. My work brings me into contact with COVID and Non- COVID patients. I am afraid that the lack of PPE is placing patients, and health care workers, at an increased threat of COVID and its complications. I am afraid that I may get fired or disciplined if I keep asking for PPE. What rights do we health care workers have under these circumstances?”
P.S. Please tell your readers to take this seriously, follow all safety precautions, and socially distance. Once you are a patient, the distance you worry about is the distance between life and death, and that’s out of your control.”

A: Thank you for the years you spent studying and training to be prepared for this emergency, reporting to duty and placing your life on the line for us all. Your question involves two areas of law:

1. the right to a safe workplace, and
2. freedom from retaliation for advocating for patient care.

The first question invokes the California Labor Code; the second invokes the Business and Professions Code. This article will address the application of the Labor Code. Next week’s column will address the Business and Professions Code.

• California Labor Code § 6401, Duty to furnish safety devices and adopt safe practices and procedures, reads as follows: “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
• California Labor Code § 6403, Failure to furnish safety devices or adopt safe practices and procedures, reads as follows: “No employer shall fail or neglect to do any of the following:

(a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe.
(b) To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe.
(c) To do every other thing reasonably necessary to protect the life, safety, and health of employees.

This code provision requires your employer to provide you with PPE and an environment, which under the circumstances, are reasonably adequate to render your workplace safe. Healthcare employers and facilities are also required to have a set of practices and policies in place to provide for workplace safety including policies dealing with the handling contagious patients and the use of PPE to protect employees and others.”

• California Labor Code § 6406, Unlawful acts states: “No person shall do any of the following:

(a) Remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment.
(b) Interfere in any way with the use thereof by any other person.
(c) Interfere with the use of any method or process adopted for the protection of any employee, including himself, in such employment, or place of employment.
(d) Fail or neglect to do every other thing reasonably necessary to protect the life, safety, and health of employees.

There is “no private right of action” to sue an employer to force compliance with these safety standards. An employee can call CAL-OSHA and report an unsafe work environment and they can inspect and enforce them. However, if an employee is retaliated against, in any way, for opposing violation of these laws, disclosing the violations to a supervisor or government agency, or demanding a safe workplace, an employee can maintain a legal action for what we refer to as the “wrongful termination, or retaliation, in violation of public policy” and for “whistleblowing” under California Labor Code Section 1102.5. This provides for a potential for recovery of lost wages, past and future, damages for emotional distress and, in some circumstances, punitive damages.

I suggest that you document your concerns so if you are retaliated against it is clear that it was in response to your exercising your rights to have a safe work environment. These are trying times. Hopefully nothing retaliatory will happen to you as all of our energies need to be focused on supporting you on the front lines and not in fighting legal battles. If something untoward does happen, contact an experienced employment trial lawyer to help you navigate the legal system.