Coronavirus’s spread throughout the United States has drastically changed the relationship between employers and their employees. However, there are numerous laws and statutes that protect California employees’ rights, especially during the COVID-19 pandemic.
CARES Act and PUA Program
First and foremost, if you or anyone that you know has lost their job or if your work hours or pay has been reduced, the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) has expanded existing unemployment insurance programs. California employees are now eligible for up to $450 per week, plus an additional $600 per week (from March 29, 2020 through July 31, 2020) provided for by the CARES Act.
If you are self-employed, an independent contractor, if your wage history is not long enough to qualify for unemployment or if you have previously exhausted your unemployment benefits, you may qualify for Pandemic Unemployment Assistance (“PUA”).
Governor Newsom signed an executive order in April 2020 creating the PUA program. The PUA program opens unemployment insurance payments to workers who don’t typically qualify, such as self-employed workers, independent contractors, those whose wage history isn’t long enough to qualify for unemployment and those who have exhausted unemployment benefits. The program began accepting online applications on April 28.
Families First Coronavirus Relief Act
If you are forced to miss work because they have contracted COVID-19, you may be eligible for up to eighty hours of paid sick leave through the Families First Coronavirus Relief Act (“FFCRA”). In addition, those who miss work due to COVID-19 related illnesses may be eligible for disability insurance, which covers approximately 60-70 percent of wages (up to $1,300 per week) for up to one year.
If you are forced to miss work because you are caring for a family member who is ill and/or quarantined due to COVID-19, then you may also be eligible for up to eighty hours of paid sick leave through the FFCRA.
If you are forced to miss work because you are caring for a child whose school or place of care has been closed due to COVID-19, you may be eligible for up to twelve weeks of emergency family leave under the FFCRA.
Occupational Safety and Health Act
While an employer can usually discipline an employee for violating its attendance policy, pursuant to the Occupational Safety and Health Act, employees can refuse to work if they reasonably believe they are in imminent danger.
Accordingly, if an employee has a specific fear that they may be infected with COVID-19 at their workplace and the employer is unable to address the employee’s specific fear to ensure a safe work environment, then the employer may not retaliate against an employee for refusing to work during the COVID-19 pandemic.
Fair Employment and Housing Act
While a countless number of California employees have been laid off due to the COVID-19 outbreak, California employees are still protected by the Fair Employment and Housing Act (“FEHA”).
The FEHA holds that employers cannot discriminate against, retaliate, or harass employees based on the following protected categories:
- Physical Disability (mental and physical, including stress, anxiety, depression, HIV/AIDS, cancer, and genetic characteristics)
- Age (over 40)
- Sex/Gender (includes pregnancy, childbirth, breastfeeding and/or related medical conditions)
- Religion (includes religious dress and grooming practices)
- Gender identity
- Gender expression
- Sexual orientation
- Marital status
- Medical Condition (genetic characteristics, cancer or a record or history of cancer)
- Military or veteran status
- National origin
- Genetic information
- Request for family care leave
- Request for leave for an employee's own serious health condition
- Request for Pregnancy Disability Leave
The FEHA also prohibits retaliation against any person for making a complaint under the FEHA, for assisting another in making such complaint or for opposing any action in the workplace that would constitute a violation of the FEHA.
Americans with Disabilities Act
Pursuant to the Americans with Disabilities Act (“ADA”), employers are required to provide reasonable accommodations to qualified employees with disabilities, unless doing so would pose an undue hardship.
During the COVID-19 outbreak, employers should accommodate employees who request reasonable accommodations (e.g. altered worksite arrangement, remote work, or time off from work) due to the employees’ underlying medical condition that may put the employee at greater risk due to COVID-19.
The Equal Employment Opportunity Commission, which enforces workplace anti-discrimination laws, notes that accommodations may include:
- Temporary job restructuring of marginal job duties
- Temporary transfers to a different position
- Modifying a work schedule or shift assignment
California Labor Code
For those employees who are still currently working, your rights are also protected by the California Labor Code. In particular, California employers must:
- Pay exempt employees - Exempt employees must be paid at least $1,040 per week ($54,080 annually). Exempt employees must still be paid the minimum required salary even if work has slowed due to COVID-19.
- Pay non-exempt employees at least the minimum wage – On January 1, 2020, the minimum wage for employers with twenty-six or more employees increased to $13.00 per hour.
- Pay overtime - Overtime in California is paid at a rate of one and a half times the regular rate of pay. For most occupations, employees are entitled to overtime pay for all hours worked in excess of eight hours, up to and including twelve hours in any workday, and for the first 8 hours worked on the seventh consecutive day of work in a workweek.
- Pay double time - Double time in California is paid at a rate of two times the regular rate of pay for all hours worked in excess of twelve (12) hours in any workday and for all hours worked in excess of eight hours on the seventh consecutive day of work in a workweek.
- Provide a paid 10-minute rest break - A rest break must be provided for every four (4) hours of work.
- Provide an uninterrupted meal break of at least thirty (30) minutes - A meal break must be provided after no more than five hours of work.
- Pay employees (with certain limited exceptions) at least twice a month on designated regular paydays - With each payment of wages the employer must provide a wage stub or statement with the following information:
- Pay period dates
- Gross wages earned
- Total hours worked
- Breakdown of hourly rates and hours worked at each rate
- Piece rate information if applicable
- All deductions
- Net wages
- Name and ID number of employee
- Legal name and address of employer.
Whistleblower Protection Laws
There are also numerous laws and statutes that protect whistleblowers. These laws and statutes include:
- Labor Code Section 1102.5. - California’s most general law prohibiting whistleblower retaliation. In particular, Labor Code 1102.5 prevents employers from retaliating against an employee for reporting or refusing to participate in unlawful conduct. Of note, California employees are still protected by Labor Code Section 1102.5 even if it turns out that the employer did not violate the law. All that matters is that the employee reasonably believes that a violation of law occurred.
- Labor Code Section 6310. - Prohibits retaliation against an employee who made an oral or written complaint to his/her employer or the California Division of Occupational Safety and Health (Cal OSHA) regarding health and safety in the workplace. Similar to Labor Code Section 1102.5, California employees are still protected by Labor Code Section 6310, even if it turns out that what the employee complained about was not unhealthy or unsafe. To be protected, the employee need only have a reasonable good faith belief in the existence of an unhealthy or unsafe working condition and/or practice.
- Labor Code Section 98.6. - Prohibits retaliation against an employee who has complained to his/her employer or filed a claim with the Labor Commissioner regarding the employee being owed unpaid wages.
- Labor Code Section 232 - Prohibits retaliation against an employee who discloses the amount of his or her wages. This section also forbids an employer from requiring an employee to sign a waiver of his/her right to disclose such information as a condition of employment.
- Labor Code Section 8547 - Prohibits retaliation against California public employees who report any of the following:
- Violation of law, regulations, executive orders or court orders
- Any condition that may threaten the health or safety of employees or the public
- Government activity that is economically wasteful or involves gross misconduct, incompetency or inefficiency.
Call Webber & Egbert Employment Law, P.C. for Help
For any questions regarding your rights during the COVID-19 pandemic, or if you would like to discuss your case confidentially, do not hesitate to contact us at Webber & Egbert Employment Law, P.C.. We can be reached at: (916) 262-7006 .
Legal Disclaimer: The information in this blog is for general information purposes only. Nothing on this blog should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.