COVID-19 and Employment Law Developments
The COVID-19 pandemic has caused major changes in our lives and workplaces. And with those changes have come new regulations. Cities, counties, states, and the federal government have put out new rules and guidelines that govern how workers and employers interact. But, given the frequent updates and number of regulations, it can be overwhelming to keep track of what employers are allowed to require. Can they fire you for telling them you’re suffering from COVID-19? Do you need to wear a mask at work? Can you be terminated for taking time off to care for a family member? We hope to clarify some of the more crucial legal developments related to the workplace during COVID-19 by answering some frequently asked questions.
If I tell my employer about my positive COVID-19 test, will this hurt my career?
No. There are numerous anti-retaliation protections in California employment law. And a recent new law explicitly says, “An employer shall not retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.” California Labor Code § 6409.6(f). The law further gives workers who’ve been retaliated against a way to complain to the Division of Labor Standards Enforcement and ensure that their rights are respected.
Does my employer need to tell me if there is a COVID-19 exposure or outbreak?
Yes. Per California Labor Code, if an employer is notified of a potential COVID-19 exposure, they must within one day:
- Notify all employees who were on the premises that they may have been exposed to COVID-19
- Give employees who may have been exposed information about COVID-19-related benefits they might be entitled to
- Discuss their disinfection and safety plan with employees
I’m recovering from COVID-19 or helping a sick family member. How can I take time off without losing my job?
There are a few options for taking leave due to COVID-19 infection or other illnesses. First, your employer may provide paid or unpaid sick leave. Second, the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) guarantee that qualified employees who need to take leave can keep their jobs after taking up to twelve (12) workweeks off in a year. Finally, there is currently supplemental paid sick leave for people recovering from or helping others recover from COVID-19 (see below for more details.)
Is there supplemental paid sick leave during the COVID-19 pandemic?
Yes. The 2021 COVID-19 Supplemental Paid Sick Leave Law (enacted through California Labor Code § 248.2) allows full-time workers 80 hours of COVID-19 supplemental paid sick leave.
Do I qualify for the supplemental paid sick leave?
Potentially. Currently, the 80-hour paid sick leave law outlined in California Labor Code § 248.2 applies to both public and private employers who have 26 or more employees. The law covers full-time employees or those who were working on average 40 hours per week prior to the leave. This law is meant to help employees dealing with COVID-19, so covers those who are unable to work due to: the employee caring for herself; the employee caring for a family member, or the employee getting vaccinated. So, if you need to stay home to recover from COVID-19, are missing work to take care of a spouse or child, are taking time off to get vaccinated, you likely qualify for supplemental paid sick leave.
Can my employer require me to be vaccinated?
Possibly, though this has yet to be determined in California. The federal government has instituted a vaccine requirement for federal employees, and cities like Los Angeles are requiring that city employees be vaccinated, though these rules have health and religious exemptions. In response, a few lawsuits have recently been filed challenging these vaccine requirements. It will be months before we know whether these mandates are lawful, but they are increasingly prevalent among private employers.
Can my employer require me to wear a mask at work?
It depends on whether you’ve been vaccinated. If you have not been vaccinated, California guidelines likely require you to wear a mask in indoor workspaces. The most recent California Emergency Temporary Standards (which became effective on July 17, 2021) requires employers provide masks to unvaccinated employees and ensure that they are worn indoors or in vehicles. Unvaccinated employees are not required to wear a mask while working outdoors. This rule only applies to unvaccinated workers, however, so if you’re already vaccinated, you are not required to wear a mask at work.
Can my employer have mass layoffs or relocations without notice?
No. At the start of the pandemic in March 2020, Governor Newsom conditionally suspended the California Worker Adjustment and Retraining Notification (WARN) Act that establishes a 60-day notice requirement for employers ordering mass layoffs. But, as of July 1, 2021, a new executive order terminated the conditional suspension of the 60-day notice requirement, so employers are now generally required to give 60 days’ notice in advance of mass layoffs, relocations, or terminations. So, if your employer has engaged in a mass termination without sufficient notice, they may be in violation of the WARN Act.
These are just a few of the pressing issues that have come to our attention, and we’ll likely know more in the coming months as issues like masks and vaccines are litigated and new guidelines are published. Until then, if you have more questions or are looking for more personalized help with employment issues, don’t hesitate to contact us.
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