As COVID-19 takes our world by storm, many Californians are seeing major changes in their employment.  We are also being flooded with new information from all levels of government and news outlets. It is difficult for employees to keep up with all of this new information while they also see their livelihoods being threatened.  In an effort to help condense some of this information, we’ve compiled a list of five things employees should know in the age of COVID-19.

1. California and Federal Wage and Hour Laws Apply to Working From Home (“WFH”)

In California, non-exempt employees generally have a right to overtime compensation when they work more than the maximum of hours of work.  In the majority of cases, non-exempt workers should be paid at their overtime rate when they work more than eight (8) hours in a day or more than forty (40) hours in a work week.  The right to overtime pay does not change just because employees WFH.

Similarly, meal and rest break rights do not change when working from home.  Most non-exempt employees have a right to an uninterrupted thirty (30) minute meal break for every five (5) hours worked.  Non-exempt employees also have a right to an uninterrupted ten (10) minute rest break for every four (4) hours worked or “major fraction thereof.”

Lastly, if you are using your home Internet, personal cell phone, personal computer or are required to incur any other personal expense to do your work, then your employer is required to reimburse you for that expense.

2. Working at the Workplace is Only Allowed for Workers in “Essential Critical Infrastructure Sectors” Who Cannot WFH

According to Governor Newsom’s Executive Order N-33-20, only workers who work in the “essential critical infrastructure sectors” are allowed to work at the workplace.  Those sectors are:

  1. Healthcare / Public Health
  2. Emergency Services
  3. Food and Agriculture
  4. Energy
  5. Water and Wastewater
  6. Transportation and Logistics
  7. Communications and Information Technology
  8. Community-Based Government Operations and Essential Functions
  9. Critical Manufacturing
  10. Hazardous Materials
  11. Financial Services
  12. Chemical
  13. Defense Industrial Base

It is recommended that even workers in these sectors work from home if they are able to while still performing their duties.  If they must go into the workplace, workers should practice social distancing and practice increased sanitation procedures.

3. Large Employers are Required to Give Notice of a Mass Layoff With as Much Notice “As Is Practicable”

The California and Federal Worker Adjustment and Retraining Notification (“WARN”) acts require some employers to give notice to their employees of a mass layoff.  Normally, the California WARN act requires that notice be given 60-days prior to the layoff. However, due to the state’s need of preventing and reducing the spread of COVID-19, Executive Order N-31-20 suspends the California WARN act with some conditions.

The conditions still require that covered employers give as much notice of a mass layoff “as is practicable” to:

  1. Workers who are part of a group of 50 employees or more that are laid-off during a 30-day rolling period;
  2. Worked at least six out of the twelve months prior to the layoff; and
  3. Worked for an employer that had 75 employees or more during the last twelve months.

The notice must include, in part, a brief statement of why reducing the 60-day notice period was required and the statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI).  More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”

4. California and Federal Employment Discrimination Laws Still Apply

As terminations and layoffs occur, employees must be aware that employers cannot use COVID-19 as an excuse to fire workers for an illegal reason, including any discriminatory reason that would violate California and Federal discrimination laws.  It is illegal for employers to terminate, or otherwise discriminate against, employees on the basis of being a member of a “protected class.” Protected classes include:

  • Ancestry;
  • Age (over 40);
  • Citizenship Status
  • Color;
  • Gender Identity, and Gender Expression;
  • Genetic Information;
  • Marital Status;
  • Medical Condition;
  • Mental Disability;
  • Military or Veteran Status;
  • National Origin;
  • Physical Disability;
  • Political Activities or Affiliations;
  • Race;
  • Religion;
  • Sex and Gender (including pregnancy, childbirth, breastfeeding or related medical conditions);
  • Sexual Orientation; or
  • Status as a victim of domestic violence, assault or stalking.

However, employees must also be mindful that because California is an “at-will” state, other forms of discrimination may be legitimate reasons for termination.  For example, an employer may be able to legally terminate employees who have worked for less than a year while keeping employees who have worked for more than a year.  Each situation requires a consideration of the specific facts and it is important that you consult with a qualified employment lawyer regarding each situation.

5. The Families First Coronavirus Response Act provides for Expanded FMLA Coverage and Paid Sick Leave.

Earlier this March the Federal government signed into law the Families First Coronavirus Response Act (“FFCRA”).  In general, the FFCRA expands the Family and Medical Leave Act (“FMLA”) and provides for paid sick leave due to COVID-19.  The FFCRA will go into effect on April 2, 2020, and will be effective through December 31, 2020.

Expanded FMLA (“EFMLA”)

The FFCRA provides an additional 10-weeks of paid family and medical leave (“EFMLA”).  The EFMLA applies to employees who work for an employer with less than 500 employees and who are taking care of a child whose school has been closed or whose child care provider is unavailable due to reasons related to COVID-19.

The first ten (10) days of EFMLA leave may be unpaid and employees may choose to use any accrued vacation leave, paid time off, personal leave, or other medical or sick leave available for part of or all of the 10-day period.  Once the first ten days are exhausted, the employer must pay full-time employees at least two-thirds (⅔) of their regular rate of pay for the number of hours the employee would normally be scheduled. Part-time employees should be paid at the regular rate of pay for the number of hours they would normally work.

Also, employees who work for employers with 25 or more employees will benefit from having their job protected and must be returned to their same or comparable position when the leave is over.  Unfortunately, employees who work for employers with less than 25 employees will not have their job protected under the EFMLA.

Paid Sick Leave

The FFCRA provides employees who work for employers with less than 500 employees with up to eighty (80) hours of paid sick leave for COVID-19 related reasons.  COVID-19 related reasons are:

  1. The employee is under a government quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
  4. The employee is caring for an individual who is under a government self-quarantine order or a health care provider recommendation to self-quarantine related to COVID-19;
  5. The employee is taking care of a child whose school is closed or childcare is not available due to COVID-19; and
  6. The employee is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Employees who take paid sick leave for their own care related to COVID-19 should be paid at their regular rate of pay.  Employees who take paid sick leave to care for another individual due to COVID-19 related reasons will be entitled to pay at two-thirds (⅔) their regular rate of pay.

Paid leave under the FFCRA should not impact any other accrued or legally mandated paid or unpaid leave.  Employees must be allowed to use paid leave under the FFCRA before being required to take other forms of leave.  Also, employers cannot change their leave policies to reduce the amount of leave an employee is entitled to take.

Consult With A Qualified Employment Law Attorney

The law continues to change around the COVID-19 crisis.  It is important to consult with a qualified employment lawyer to help you figure out what your rights are as a California employee.  Each situation is different and the way that the law applies to each employee requires careful consideration. If you’d like to consult with an attorney at Abogato, LLP, you can call us at (619) 919-6360.

Attorney Advertising:  The enclosed materials are for general informational purposes only and are not intended as legal advice.  Consult with a qualified California employment lawyer regarding your individual employment rights.