Employee Rights in the Time of COVID-19

On March 4, 2020, Governor Newsom declared a state of emergency to curb the spread of COVID-19. Governor Newsom’s orders have resulted in the closure of a number of nonessential businesses and a wide range of workplaces. As a result, many employers are reducing their workforces or allowing employees to work from home. Employees across California are also facing an unprecedented number of layoffs and unemployment. During this crisis, employees may be wondering what rights they have and how COVID-19 will affect their jobs.

Minnis & Smallets remains open remotely to serve current and new clients. Our team remains committed to fighting for your rights. We have compiled below a list of common questions and resources related to the COVID-19 crisis. If you have any questions, please either call (415) 551-0885 or submit a message through the contact form on our website.

Can an employer terminate an employee because COVID-19 has affected their business?

Most employment in California is considered to be “at-will.” This means that an employer can discharge an employee at any time, for any or no reason, even if that reason is unfair. It is not unlawful for an employer to terminate an employee as a part of a layoff or reduction in force due to economic necessity caused by COVID-19. For example, nonessential businesses that have been directly affected by COVID-19, such as restaurants, retail stores, and theaters, may impose layoffs to reduce costs.

In some cases, however, a layoff may cover or mask an employer’s practice of targeting for termination certain workers, such as pregnant women, older employees, or employees with health or medical issues. Employers cannot terminate protected employees under the guise of a layoff or reduction in force. For example, if the employer is an essential business that has not been financially affected by the pandemic, or if the employee is part of a layoff of one or a few employees, then it may be that the employer is using a layoff as a pretext, or an excuse, for unlawful termination. Examples of unlawful terminations include:

• Termination due to discrimination. Unlawful discrimination includes discrimination based on sex, pregnancy, race, disability, age, religion, ethnicity, sexual orientation, or national origin.
• Termination for exercising a legal right. This includes terminating an employee for reporting acts of discrimination or harassment, resisting or rejecting unwelcome sexual advances, requesting family or medical leave or pregnancy leave, or requesting an accommodation for a disability or religious practice.
• Termination for engaging in whistleblowing. An employer cannot terminate an employee for reporting violations of health and safety regulations, anti-discrimination laws, wage and hour laws, or other state or federal laws or regulations.

Is an employee with COVID-19 or a compromised immune system entitled to work from home?

Employers are required to provide reasonable accommodations to an employee with a disability if the accommodation does not cause undue hardship to the employer, such as significant expense or difficulty. Neither the common cold nor the seasonal flu is likely to be considered a disability. However, cancer and other conditions that may lead to a compromised immune system are likely to be considered disabilities that entitle employees to reasonable accommodations. In addition, complications caused by more severe cases of COVID-19 may be disabling, and thus entitle an employee to reasonable accommodations.

Reasonable accommodations are modifications or adjustments employers make to allow employees with disabilities to perform the essential functions of their jobs. Reasonable accommodations that a disabled employee might need as a result of COVID-19 may include:

• A leave of absence for treatment or recovery;
• Time off for medical appointments;
• Personal protective gear including gloves, masks, hand sanitizer, and respiratory protections;
• The ability to work from home if the employee can perform the essential functions of their job from home; and
• The ability to distance oneself from other employees to reduce exposure.

An employer may require a note from a health care provider explaining why the employee needs an accommodation. However, particularly given the current strain on health care providers and potential risk of exposure by going to a health care provider, employees should consider beginning the process of asking for accommodation by simply explaining to their employer what accommodation they need and why.

It is unlawful for an employer to retaliate against an employee for requesting medical leave or accommodation. In addition, under California Labor Code §§ 6310 and 6311, employers cannot retaliate against an employee who makes safety or health complaints or refuses to perform job duties under hazardous conditions. Health and Safety Code § 1278.5 also specifically prohibits retaliation against health care workers who are whistleblowers.

An employee may request an accommodation in order to minimize the risk to a member of the employee’s household who has a disability that makes that person more vulnerable to the virus. While the law is currently unclear as to whether an employer is required to provide such an accommodation, employees are protected from discrimination or retaliation, such as harassment or wrongful termination, for making the request or because of a known relationship or association with an individual who has a disability.

Any employee who believes they are being retaliated against for requesting a medical leave or accommodation should seek immediate legal advice.

Can an employee take job-protected leave from work if they or a family member contracts COVID-19?

Under certain circumstances, employees are entitled to take job-protected leave from work because of their own serious health condition or to care for a family member with a serious health condition. A “serious health condition” includes any condition that requires an overnight, inpatient stay in a health care facility; a period of incapacity of more than three consecutive days and treatment from a health care provider; or a period of absence to receive multiple treatments. If an employee or family member has a severe case of COVID-19, or a compromised immune system due to a chronic condition, they are likely to have a “serious health condition” as defined by the law.

The California Family Rights Act (CFRA) provides some California employees the protection to take twelve weeks of job-protected leave. To be eligible for such medical leave, an employee must have worked for the employer for at least one year and at least 1,250 hours in the last calendar year. In 2020, CFRA only applied to employees who worked at companies with 50 or more employees. However, as of January 1, 2021, the State of California expanded the reach of the CFRA to employers with five or more employees.
Employees who take family or medical leave are entitled to return to the same or an equivalent position after the leave, except in limited circumstances, such as when the employee would have been terminated in a layoff even if the employee had not taken a medical leave. An employer may not use the employee’s family or medical leave as a “negative factor” in the layoff decision.
CFRA provides remedies for employees who are denied leave, who are fired for taking it, or who are not allowed to return to work after their leave ends.

Where can I get legal help?

Employees who suspect that they have been subjected to discrimination, retaliation, or unlawful termination can turn to the law firm of Minnis & Smallets for help. Our team of experienced employment lawyers help those who have been subjected to employment discrimination or unlawful terminations. Employees can share their concerns with us by calling 415-551-0885 or by submitting a question on our online contact form.