During this time of crisis, many employees are facing unprecedented questions or challenges. Some of those may include:
· having to apply for unemployment insurance;
· figuring out whether their jobs are so essential as to perhaps put their health in harms way;
· working from home;
· navigating childcare; and, even,
· facing discrimination linked to their ethnicity.
The good news in all of this is that California remains one of the strongest states with respect to workplace protections and social safety nets. That said, laws are quickly changing to add new resources and protections; and, old laws are being freshly tapped for the new circumstances. For instance:
1. Although it should go without saying: It’s still illegal to discriminate, harass or retaliate against a worker in a protected class. The Fair Employment and Housing Act still applies – and, has always extended to instances of “associational discrimination.” Thus, if a worker is caring for a relative with Coronavirus/Covid-19 and suffers an adverse action from their workplace, they may have a claim for associational discrimination.
2. Still, workplaces have a legal duty to keep a workplace safe for all their employees. Thus, while California employers’ inquiries as to a worker’s health have been typically limited to those that are job related and consistent with business necessity, during a pandemic, an employer can ask employees if they are experiencing CV symptoms and may take temperatures (safely!) or require that employees take their own temperatures prior to coming into work.
3. Along those lines of safety first at work, employers may require that essential workers wear personal protective equipment. One caution: employers should be mindful of any disability restrictions that may require equipment to be altered or tailored for the disability.
4. Employers may also send employees home if sick, all while maintaining leave requirements.
In the arena of new laws, most notable is H.R. 6201, a.k.a. the Families First Coronavirus Response Act that takes place beginning on April 2, 2020 with a current sunset of the end of this year. [Note, but, the Dept. of Labor will not enforce this law until 30 days after its passage, or starting enforcement on April 14.
Family and Medical Leave Act Extended to Childcare Needs
In light of the forced school closures, the Families First Coronavirus Response Act will extend Family and Medical Leave Act (FMLA) to paid leave related to childcare needs. The only documentation required to qualify is notice of the school closure. There is also an ‘emergency leave’ provision that allows paid leave of up to 80 hours that must be tapped prior to the regular FMLA. Note, but, there is no indication at this juncture that the new emergency paid leave extends out the allowable 12 weeks total of family medical leave. After the emergency leave is exhausted, intermittent leave may be used as agreed on with the employer, including on a daily basis. Of course, depending on the circumstances, an employee may be just as productive working from home while also caring for a housebound child.
Employees may be compensated for any additional costs related to work from home orders:
Finally, in situations where an employee is forced to work from home, the California Labor Code requires an employer to reimburse their employee for any additional costs incurred by working from home. (See, Labor Code §2802.)