Employee Rights During COVID-19

The COVID-19 pandemic has changed work conditions in California dramatically. Many companies were forced to allow their non-essential workers to work from home temporarily. Although California is reopening its economy, the pandemic continues, and employees who develop COVID-19 may become disabled by their illness. If you develop COVID-19, you may want to know whether it counts as a physical disability and what your protections are. You should consult the experienced Los Angeles disability discrimination lawyers at the Kokozian Law Firm to understand your employee rights during COVID-19.

The California Fair Employment and Housing Act (FEHA) prohibits workplace discrimination against employees with physical or mental disabilities. It applies to all employers in California with at least five employees. Discrimination can include any adverse employment action taken against an employee due to a protected characteristic. It can include failure to hire, termination, failure to promote, demotion, disparate pay, and harassment. For example, if you are rendered disabled by COVID-19 complications, and your boss terminates you for this reason, this would be workplace discrimination.

FEHA defines a physical disability as any physiological condition, disorder, or disease that affects someone’s immunological, neurological, or cardiovascular system and restricts a major life activity. You are protected even if you do not actually have a physical disability but are perceived as having a physical disability. You may have a physical disability if you have contracted COVID-19. FEHA protections can also apply if you are associated with someone who has a physical disability. Thus, if your spouse contracts the coronavirus, you may be protected.

FEHA is more protective than the federal Americans with Disabilities Act (ADA). It protects even employees who have a transient condition, whereas the ADA does not cover minor, temporary conditions unless they have a serious, long-term impact.

FEHA requires employers to provide a reasonable accommodation to a disabled employee unless providing the accommodation would pose an undue hardship. It also requires an employer to engage an employee with a disability in a good-faith interactive process to determine what might accommodate the employee in carrying out their job. In the context of COVID-19, reasonable accommodations could include unpaid or paid leave for treatment and recovery, leaving the job open to give the employee time to recover, allowing the employee to work from home, or allowing the employee to socially distance in the workplace. You should contact an attorney if your employer fails to provide an accommodation. An employer may try to defend itself by arguing that providing an accommodation would cause an undue hardship, but an undue hardship needs to be more than a minor expense.

You may be entitled to leave under the Family and Medical Leave Act (FMLA) if you are disabled by the coronavirus or related complications. If your employer has at least 50 employees within 75 miles of your worksite, and you are eligible, you may be able to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for family or medical reasons. If it develops into a serious health condition, COVID-19 may count as a reason to take FMLA leave.

You may also be eligible for leave under the California Family Rights Act (CFRA). As with the FMLA, this law applies to employers with at least 50 employees within 75 miles of your worksite. You qualify if you were employed for at least a year and worked for at least 1,250 hours during the past year. You can take this leave for your own or a family member’s serious health condition, among other reasons. A serious health condition includes any illness, injury, impairment, or mental or physical condition of the employee or a spouse, parent, or child of the employee that involves either inpatient care or continuing treatment.

The CFRA allows for a maximum of 12 weeks of job-protected leave for COVID-19. It also allows you to take this leave if a member of your family suffers from a serious health condition due to COVID-19.

The Families First Coronavirus Response Act provides new paid leave requirements through December 31, 2020 for specific reasons related to COVID-19, assuming that you work for a covered employer. The Act provides two weeks of paid sick leave at your regular rate of pay if you are not able to work due to quarantine, governmental order, or your doctor’s advice, or if you are experiencing symptoms of COVID-19 and looking for a diagnosis. It also provides for two weeks of paid sick leave at two-thirds of your regular pay rate if you are not able to work due to a bona fide need to take care of someone under quarantine, governmental order, or doctor’s orders. This leave is also available if you need to take care of your child if your school or childcare facility is closed or unavailable for reasons related to COVID-19. Up to 10 more weeks of paid expanded family and medical leave at two-thirds of your regular rate of pay should be given if you are not able to work because of a bona fide need for leave to take care of a child whose school or childcare is not available due to COVID-19.

These provisions cover private employers with fewer than 500 employees and certain public employers. However, small businesses with fewer than 50 employees may be able to get an exemption if the leave requirement would endanger the viability of the business.

There are substantial protections available to employees suffering from the coronavirus. If you are concerned about your employee rights during COVID-19, you should talk to an attorney about your circumstances. At the Kokozian Law Firm, we represent people in Los Angeles and throughout California. Call us at 323.857.5900 or contact us via our online form.