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California Questions About Returning To Work We Have Answers

On Behalf of | May 30, 2020 | Employment Updates, REASONABLE ACCOMODATION, Uncategorized

As employers in Orange County and the rest of California get back to business, employees have questions, including whether they can (1) refuse to work if they feel unsafe and (2) what happens to the litany of unemployment benefits if they do; and (3) What is the Business Obligation to Protect the Employees? The short answer is you can lose benefits if you refuse to return to work, and businesses need to use reasonable steps to protect their employees.

What Happens if You Refuse to Return to Work?

Employment is “at will” by default in California.
This means under most circumstances employers can fire workers for pretty much
any reason at any time unless the worker has a contract or collective bargaining
agreement that provides for something more.

Americans with Disabilities Act

Workers may also be able to avoid a return to the workplace under the Americans with Disabilities Act.  The law requires employers to provide disabled workers “reasonable accommodations” that let them do their jobs as long as they do not pose “undue hardships” for the business. If a worker has a condition that puts them at high risk for COVID-19 complications, their employer may have to let them take leave or work remotely, even if their office has reopened.

The Fair Employment and Housing Act & California Family Rights Act

The California Fair Employment and Housing Act (“FEHA”) and the California Family Rights Act (“CFRA”) are in place to protect the rights and benefits of employees all over the state.  The FEHA dictates an employer cannot discriminate against an employee for physical or mental disability. A physical disability is defined as any physiological condition that affects key body systems and limits major life activities. California Government Code sec. 12926. This includes those that may occur in the future. Under this definition, a person who has contracted COVID-19 or has encountered someone else who has is likely be included in the physical disability definition.

Duration is not a factor determining disability under the FEHA definition, as it is in the American Disabilities Act. Diaz v. Fed. Express Corp., 373 F. Supp. 2d 1034, 1052 (C.D. Cal. 2005). Temporary conditions such as COVID-19 may be attributed as a disability. To qualify as a disability, the condition may not be mild, as with a common cold. California Code of Regulations, tit. 2 sec. 11068. However, since the Coronavirus apparently includes more serious symptoms, such as severe respiratory issues and even death, this condition is likely a disability because it is severe enough in physiological symptoms and warranting widespread government action.

An employer is required to provide reasonable accommodations for an employee’s physical or mental disability. Government Code section 12940 (m)-(n).) Under FEHA, the employer must engage in an interactive process with the employee to determine a reasonable accommodation that best addresses the specific mental or physical disability. (Id.) These accommodations are a requirement; however, an employer may escape liability of not providing them if they can prove them to be an undue hardship to implement and maintain. (Id.) Examples of reasonable accommodations include, but are not limited to, job restructuring, modified work schedules, and provision of interpreters or readers. Government Code section 12926 (p)(2).

Most Employees will Lose Unemployment If they
Refuse to Report to Work

Unemployment insurance has been available to millions of workers who have lost their jobs during the COVID pandemic, especially after the federal government boosted workers’ weekly benefits by $600 in the Coronavirus Aid, Relief and Economic Security Act. In most cases workers lose these benefits if they are called back to work and refuse to report to work. Only a limited few categories of workers may not.

First, the California Employment Development Department  (“EDD”) has published guidelines on what will happen if you refuse to return to work. Essentially, an nemployer can report the employee to the EDD for refusing to return  The website states, “Within 10 days of your employee’s refusal to return to work, an employer may send a letter to the EDD at the address listed on the original notice that was provided when you received the Notice of Unemployment Insurance Claim Filed (DE 1101CZ), in order to inform the EDD of this information.”  See   Visit Responding to UI Claim Notices for more information about your rights.

Second, working your full normal hours remotely would not qualify you for Unemployment Insurance benefits, but could if your usual number of work hours are reduced through no fault of your own. The first $25 or twenty-five percent (25%) of your wages, whichever is the greater amount, is not counted as wages earned and will not be reduced from your UI weekly benefit amount. For example, if you earned $100 in a week, the Department would not count $25 as wages and would only deduct $75 from your weekly benefit amount. For someone who has a weekly benefit amount of $450, they would be paid a reduced amount of $375.

Workers may be able to keep collecting if they refuse to report to an unsafe workplace, but that may not be the smartest decision to make in an economy where jobs are likely to be limited for a while. The federal government has said workers can’t collect if they refuse “suitable work,” which gives them some leeway to refuse unsuitable work. What makes a work unsuitable is not clear, however.

The Social Security Act,
which controls regular unemployment benefits, looks to the “prevailing
conditions of work” to determine suitability, Evermore said. Under this
standard, work would not be suitable if safety conditions are worse than at
other comparable places of work. The Stafford Act’s Disaster Unemployment
Assistance program, on the other hand, says work is not suitable if it presents
an “unusual risk to the health, safety or morals of the individual” – whatever that
means. which standard applies and how they relate to the risks posed by the pandemic
is unclear and will likely be litigated int eh Court for years to come.

What is the Company’s Obligation to Protect the Employees?

Federal and state laws require employers to provide their workers with a safe workplace, but they set few hard-and-fast rules for work during a pandemic.

Under federal law, the Occupational Safety and Health Act (“OSHA”) requires employers to follow certain safety standards put out by OSHA  some of which may apply to COVID-19. For example, OSHA requires employers to provide workers respirators or other personal protective equipment if job hazards demand it, though the agency has given most non-health care employers freedom not to provide masks during the crisis.  Another rule requires employers to provide hand-washing facilities to nonmobile workers. Other employers may be subject to stricter rules set by state safety offices, such as a Cal/OSHA rule requiring employers to protect workers from airborne diseases.

The Occupational Safety and
Health Act also imposes a “general duty” to keep the workplace “free from
recognized hazards” that could cause workers serious harm.  Using common sense, these rules require
employers to protect their workers from COVID-19.  The US Department of Labor has indicated it
will go after employers that do not implement reasonable protections. If
workers feel they have been retaliated against they have 30 days to complain to
OSHA. The agency then investigates, and if it finds merit to the claim,
attempts to settle the dispute before filing suit.

Workers who get coronavirus
or can’t work because they have to take care of family members may be able to
take paid time off, even if their employer doesn’t ordinarily offer paid sick
time.  The Families First Coronavirus
Response Act requires employers with fewer than 500 workers to provide short-
and long-term leave to workers who come down with COVID-19 or cannot work for
certain reasons tied to the virus.

Though some states have
laws making employers provide paid sick and family leave, FFCRA is the
first-ever federal mandate. However, it leaves out a large portion of the
workforce — the law doesn’t cover about 6.8 million workers at large firms who
don’t get paid leave, according to an Economic Policy Institute analysis of DOL

Under the law, workers can
take two weeks off at full salary — up to $511 per day — if they’re subject to
a government isolation order, their doctor has told them to self-quarantine or
they have COVID-19 symptoms. They can also take off at two-thirds pay — capped
at $200 a day — to care for family members who are subject to quarantine orders
or children whose schools have closed. Workers whose school-age kids are now at
home can also take off up to 12 weeks at partial pay to care for them.

The law also makes it
illegal for employers to retaliate against workers who request paid sick days
or leave under FFCRA and lets workers sue if they have been underpaid or
unfairly denied time off  The two-week
benefit is built on the Fair Labor Standards Act, which sets pay standards, and
the leave benefit is based on the Family and Medical Leave Act, which provides
workers unpaid, job-protected time off to deal with medical issues.

The CFRA Applies to Employers with Fifty or More Employees

Employees who have contracted COVID-19 are likely covered by the CFRA or the federal Family Medical Leave Act (“FMLA”). Under the CFRA, employees qualify for assistance if they meet two criteria: (1) they have been employed by the employer for at least twelve months and (2) they have worked at least 1,250 hours during the year before the CFRA leave will commence. (Cal. Code Regs., tit. 2, §11807(e).) An eligible employee may take a leave of up to twelve job-protected leave for “serious health conditions”, which includes “illness, injury (including, but not limited to, on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent, or spouse of the employee that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse.” (Cal. Code Regs., tit. 2, §11807(r).)

Families First Coronavirus Response Act Expands the FMLA

As of April 2, 2020, the Families First Act expands the FMLA through the
end of 2020. This Act covers Emergency Family and Medical Leave and Emergency
Paid Sick Leave.   The Families First Act
requires employers with more than twenty-five employees to return employees to
the same position following a Coronavirus-related leave. Additionally, the
employee cannot be retaliated against or discriminated for requesting leave.
For employers with fewer than twenty-five employees, employers are exempt if the
position no longer exists due to economic conditions and they made reasonable
attempts to return the employee to an equivalent position.

Qualifications for Both Parts of the Families First Act

Employees qualify if they are “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

Qualifying Employers are Exempt from the Family and Medical Leave

Health-care providers, emergency care responders, and large businesses
with more than five hundred employees are exempt. Additionally, those small
businesses (less than fifty employees) in which compliance with the Families
First Act would jeopardize their viability as a business may be exempt.

The Maximum Paid Emergency Family and Medical Leave is 12 Weeks

Although the first ten days of leave can be unpaid, employees have the
right to utilize vacation or sick days for these days.

Employees opting to take medical or family leave are entitled to
two-thirds of their regular rate of pay or two-thirds of the applicable minimum
wage, whichever is highest. However, there are limits to this. Employees on
leave may be paid up to $200 dollars per day or $12,000 over the course of
twelve weeks.


Lawyers like our firm, Quintilone & Associates, that are
skilled and comfortable with the FLSA and the FMLA, should be able to pretty
quickly and appropriately get into court and correct these violations if the
facts of the case are in violation of the law.
Workers who get sick on the job may also be able to file for and collect
workers’ compensation, a state-administered payment for injuries or illnesses
that stem from work.  Our office does not
handle Applicant Workers’ Compensation cases, but we can refer you to top law
firms that do.

If you have any questions
about the Families First Coronavirus Response Act and California leave, please
contact Richard E. Quintilone II Esq.
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