Wondering what new sick pay and emergency FMLA leave laws apply to California employees as a result of the novel coronavirus pandemic? Know your sick pay and leave rights with our comprehensive COVID-19 Guide for California Employees.
While the new law provides a host of provisions, the Families First Coronavirus Response Act requires covered employers to provide up to two weeks of emergency paid sick leave as well as emergency leave under the Family Medical Leave Act (up to 12 weeks, ten of which are paid).
To qualify for the new paid sick leave, you must work for an employer who has fewer than 500 employees and you have been subjected to Federal, State or local quarantine or isolation order related to COVID-19.
This includes employees who are caring for an individual who is subject to a quarantine or isolation or has a child who’s school or daycare has been closed. Full time employees can qualify for up to 80 hours of paid sick leave. Note, employees who are able to telecommute do not qualify for paid sick leave.
To qualify for the new emergency Family Medical Leave, the employee must have been on the payroll for 30 days prior to the leave and either be in an coronavirus emergency area (so declared by Federal, State, or local authority) or “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
The employee could take up to 12 weeks of job-protected family leave. The first ten days are unpaid leave (but the employee may use any accrued time off he/she has available). For the remaining ten weeks, the employer must pay at least two-thirds of the employee’s usual pay, up to a maximum of $200 per day and a maximum of $10,000 in total family-leave payments.
If you are unable to work because you were exposed to COVID-19, you can file a Disability Insurance (DI) claim. DI provides short-term benefit payments to eligible workers who have a full or partial loss of wages due to a non-work-related illness, injury, or pregnancy.
Caring for Someone Ill or Quarantined. If you’re unable to work because you are caring for an ill or quarantined family member with COVID-19 (which has been certified by a medical professional), you can file a Paid Family Leave (“PFL”) claim.
Eligibility considerations include if you have no other care options and if you are unable to continue working your normal hours remotely. PFL provides up to six weeks of benefit payments to eligible workers who have a full or partial loss of wages because they need time off work to care for a seriously ill family member.
Effective July 1, 2020, PFL extends the total claim timeframe from six weeks to eight weeks. Individuals who are able to do so, may choose to delay filing their PFL claim until July 1, 2020, or after to receive the extended leave benefit.
Note, PFL does not provide job protection, only monetary benefits. However, your job may still be protected through other federal or state laws such as the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA).
For more information about the FMLA, visit the Department of Labor or call 1-866-487-2365. For more information about the CFRA, visit the California Department of Fair Employment and Housing or call 1-800-884-1684.
If your employer has reduced your hours or shut down operations due to COVID-19, you can file an Unemployment Insurance (UI) claim. That includes a parent who needs to stay home to care for dependent children due to a school closure.
Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must meet all other eligibility criteria. California Governor Newson’s Executive Order waives the one-week unpaid waiting period, so you can collect unemployment benefits for the first week you are out of work.
Filing a claim for each of these benefit programs can and should be done online whenever possible. The EDD’s COVID-19 Resources website provides all of the links needed to help workers identify their particular situation and how to apply for benefits.
Be aware that it takes at least a few weeks to process claims and issue benefit payments to those found eligible to receive benefits.
Can my employer require me to use my vacation time or PTO before taking emergency FMLA or sick pay leave? No. California employees can exhaust paid leave through emergency FMLA before taking any accrued, PTO, vacation, or regular sick pay provided by their employer.
Because the first 10 days of the new sick pay and emergency FMLA laws are unpaid, employees may choose to use their accrued PTO, vacation or regular sick pay to get paid.
What about vacations? Under federal law, vacation time isn’t guaranteed. Absent a written contractual or union agreement, under federal law most employers are within their rights to cancel a vacation and require workers to return to the job.
If you have been classified as an “Essential Critical Infrastructure Worker” by a federal, state or local emergency order, under federal law your employer has the right to cancel your vacation.
If you have been approved for vacation, your employer cannot forbid you to travel, however you should at all times comply with any federal or state invoked restrictions on travel. Please see the Governor’s Executive Order and the State Department’s guidance on current travel restrictions.
Can Your Employer Require You to Work From Home? Changes to policies and shelter-in-place orders due to the COVID-19 pandemic are ongoing, but in general, your employer does have the right to ask you to work from home.
Does That Mean You Have The Automatic Right to Work from Home? You do not have the automatic right to work remotely absent a government imposed quarantine that specifically states that your employer must allow you to work remotely from home.
Can you be fired for refusing to work or because you complained about concerns about being in unsafe, close contact with customers or colleagues during the outbreak? In general, workers are protected from retaliation from an employer if they refuse to perform unlawful activities or complain about what they reasonably believe to be unsafe working conditions or illegal activities.
SW Employment Law is committed to recovering compensation for employees from across California, especially in these uncertain times when employee rights are changing daily as a result of the novel coronavirus pandemic.
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If you’d like our help evaluating your case and understanding the options available to you, we would love to help.
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