High-risk employees include any employees over 65 years of age.

High-risk employees also include employees who have conditions the Center for Disease Control (CDC) has found make them at high-risk for COVID-19. CDC website

This includes employees with any of the following medical conditions: liver disease, chronic kidney disease undergoing dialysis, diabetes, severe obesity (body mass index measuring 40 or more), serious heart conditions, chronic lung disease, or asthma that is moderate or severe.

High-risk employees are also those who are immunocompromised. According to the CDC, many conditions can cause an employee to be immunocompromised, so talk to your doctor about whether you are immunocompromised. The CDC’s current website includes the following as examples of conditions that cause people to be immunocompromised: smoking, cancer treatments, bone marrow and or organ transplants, HIV or AIDS that is not well controlled, and long term use of medications that weaken the immune system.

If you are high-risk, be sure to request a reasonable accommodation from your employer. Your employer is obligated to engage in an interactive process with you to determine whether there is a reasonable accommodation for you. Types of reasonable accommodations, depending upon your job and other factors, may include working from home, eliminating job functions that are not essential, time off, or a flexible work schedule. The EEOC specifically urges employers and employees to look for creative and flexible solutions that permit you to do your job safely.

An employer cannot retaliate against you or terminate your employment because you ask for a reasonable accommodation because you are a high-risk employee. If your employer does, reach out to Siegel LeWitter Malkani for advice and be safe!

As a result of the ongoing COVID-19 pandemic, many employers are being forced to lay off, furlough, and/or reduce employee hours as a result of slow or nonexistent business. If you find yourself out of work, or working a reduced work schedule through no fault of your own, you may be entitled to unemployment insurance (UI) benefits and should file a claim with the California Employment Development Department (EDD) https://edd.ca.gov/ Benefits range from $40 to $450 per week depending on your earnings history within the base period, and other factors, such as whether you are receiving any wages or pay. Although there is normally a one week waiting period for unemployment benefits, the order issued by the California Governor waived that period.

To be eligible for unemployment benefits, you must meet the eligibility requirements including that you:

• Earned enough wages during the base period to establish a claim;
• Have legal authorization to work in the U.S.;
• Are totally or partially unemployed;
• Are unemployed through no fault of your own;
• Are physically able to work;
• Are available for work;
• Are ready and willing to accept work immediately; and
• Are actively looking for work (note: this may not apply if you are working reduced hours)

Reduced Hours

If your employer reduces your hours due to COVID-19, you may be entitled to unemployment benefits. Even if you are still working some hours, you may be entitled to partial wage replacement. If you expect to return to work with your employer within a few weeks, you must meet the eligibility requirements listed above, but you are not required to actively seek work each week. However, you must able and available to work during each week that you receive unemployment benefits.

Generally, to be eligible for partial unemployment benefits, your hours must be reduced by at least 50%. However, because of the continuing developments, we suggest that if you have suffered any wage loss due to your hours or pay being cut, you should file an unemployment claim to determine if you are eligible.

Pandemic Unemployment Assistance

Under the recently passed federal Coronavirus Aid, Relief and Economic Security (CARES) Act, which was enacted on March 27, you may be eligible for an additional $600 per week, on top of the regular unemployment amount, through the end of July. In addition, the CARES Act extended unemployment benefits from 26 weeks to 39 weeks.

It is unclear how this benefit will be paid, and to date, the California EDD is awaiting guidance from the Department of Labor. We recommend that you continue to check for updates on the EDD website: https://edd.ca.gov/about_edd/coronavirus-2019.htm

Independent Contractors

Typically, independent contractors are not eligible for unemployment benefits (and their employers don’t pay unemployment insurance payroll taxes).

Under the recently passed federal CARES act, independent contractors may be eligible for unemployment insurance as well as the additional $600 per week provided for under that new law.

In addition, there have been a lot of changes to the law on who can properly be classified as an independent contractor in California. If you have been classified as an independent contractor, it may be that this was inappropriate and you may be reclassified as an employee, and therefore entitled to receive unemployment benefits.

At the moment, California’s EDD website has not been updated to include the new provisions for independent contractors, but if you are out of work, or working a reduced work scheduled due to COVID-19, you should apply for unemployment insurance.

Self-Employed Workers

As with independent contractors, normally self-employed workers are not entitled to unemployment insurance (and do not pay unemployment insurance payroll taxes). However, under the CARES Act, many self-employed individuals will qualify for unemployment insurance as well as the additional $600 per week benefit for up to four months.

At the moment, California’s EDD website has not been updated to include the new provisions for independent contractors, but if you are out of work, or working a reduced work scheduled due to COVID-19, you should apply for unemployment insurance.

Undocumented Employees

Unfortunately, undocumented workers are not eligible for unemployment insurance. However, under California law undocumented workers may be entitled to income from State Disability Insurance (SDI) (https://www.edd.ca.gov/disability/), Paid Family Leave (https://www.edd.ca.gov/disability/paid_family_leave.htm), Workers’ Compensation (https://www.dir.ca.gov/dwc/) and Paid Sick days (https://www.dir.ca.gov/dlse/paid_sick_leave.htm)

Quit Your Job?

Normally, if you quit your job, unless you did so for very limited reasons, you will not be entitled to unemployment insurance benefits. However, under the expanded coverage of the CARES Act, employees who quit because they contracted COVID-19, or because they were required to leave their job to provide full-time care to family and other relatives but did not have access to paid leave benefits, may be entitled to unemployment insurance benefits. Prior to quitting your job, you should see, what other possibilities may be available to you including FMLA/CFRA, Paid Family Leave, and the expanded child care leave under the FFCRA. Blog Article: New Protections for Workers Under the Federal Families First Coronavirus Response Act Because changes are occurring daily, we recommend that you continue to check the EDD website for updates at https://edd.ca.gov/about_edd/coronavirus-2019.htm

What does the new law provide?

• 10 Paid Sick Days for full-time workers
  • You receive 100% of your pay (up to $511 per day, up to a total of $5,110) for 10 days if you are quarantined or if you are exhibiting COVID-19 symptoms and are seeking a COVID-19 diagnosis
  • You receive 2/3 of your pay (up to $200 per day, up to a total of $2,000) if you are caring for another individual who is quarantined or because of illness, or your child’s school or child care is closed and you do not have another child care provider
  • If you are a part time employee, you are eligible for the number of hours of leave that you work on average over a two week period

• 12 Weeks Paid Family Leave
  • Full-time employees are eligible for up to 12 weeks of leave at 40 hours per week. During that time, eligible employees will receive 2/3 of their pay (up to $200 per day and $10,000 in the aggregate) where the employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
  • If you are a part-time employee, you are eligible for leave for the number of hours that you are normally scheduled to work over that period.
  • The first two weeks can be unpaid, or dovetailed with the paid sick days described above to cover the gap.
  • This provision is only applicable if you have been employed for at least 30 calendar days

Who is Covered?

• Public agencies, including federal, state and local agencies
• Private employers with under 500 employees
  • Employer provide the pay and can get a credit or refund through payroll taxes
• All employees of covered employers are eligible for two weeks of paid sick leave, but you must have been employed for at least 30 days to be eligible for the additional 10 weeks of paid family leave.
• Exceptions?
  • Under the law, the Secretary of Labor can exempt employers with 50 or fewer employees from the leave due to school closings or child care unavailability if the viability of the business is compromised. However, the process for obtaining an exemption is unclear but guidance is expected in April 2020.
  • An employer or the Department of Labor can also exempt healthcare providers and emergency responders

If I Take the Child Care Leave, Does My Employer Have to Reinstate Me?

The Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) were the main leave laws applicable to California employees prior to the COVID-19 pandemic. Under those laws, if you take protected leave, your employer is required to reinstate you to you original position or an equivalent one when you return to work. Under the Families First Coronavirus Response Act, there is a possibility that your employer does not have to return you to your same job if your employer employs fewer than 25 employees.

When Does This Start?

• The provisions go into effect April 2, 2020 (or sooner). The protections end December 31, 2020.

What if I Have Other Sick Leave Available To Me?

Your employer may not require you to use other paid leave before the paid sick leave provided in the Families First Coronavirus Act.

Can My Employer Retaliate Against Me for Taking Sick Leave?

The law provides that it is illegal for an employer to discharge, discipline or discriminate against any employer who takes the sick leave provided by the Act.

Changes to the law are happening on a daily basis in response to COVID-19. We will continue to post updates, but if you have questions about your employment situation and would like to speak with an attorney, please contact our offices. Our physical office is closed, but attorneys are available for phone and Zoom consultations.

Sick with or Exposed to COVID-19

In California, the California Family Rights Act (“CFRA”) provide up to 12 weeks of unpaid job protected leave within a 12 month period to care for yourself or your immediate family if they have a serious health condition. A serious health condition includes any illness that causes any period of incapacity requiring absence from work, school, or other regular daily activities for more than 3 consecutive days. To be eligible for CFRA leave, you must have been employed with your employer for 12 months and you must have worked at least 1250 hours in that twelve month period and your employer must employ 50 or more people within a 75 mile radius. While the CFRA does not provide pay, other laws may provide wage replacement, and your employer may also have other benefits and programs that you may be able to utilize during this time.

If you are unable to work because you have been diagnosed with or if you have been exposed to COVID-19 (certified by a medical professional) you can apply for disability insurance which will cover partial wage replacement. Contact your doctor for assistance with a medical certification if you believe you have, or have been exposed to COVID-19. While there is normally a one-week unpaid waiting period that period has been waived under the Governor’s Executive Order. EDD Website

If you have paid sick leave available, your employer must provide the leave and compensate you under the California paid sick leave laws. You may use sick leave for absences due to your own illness or the care of a family member. California Department of Labor Standards Enforcement

Caregiving

As described above, you may be entitled to job-protected leave if you are caring for an immediate family member who has COVID-19 under the California Family Rights Act. (See above.) CFRA is unpaid leave so below are some options on obtaining wage replacement if you are caring for a family member.

If you are unable to work because you are caring for an ill or quarantined family member (child, parent parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner) with COVID-19 (certified by a medical professional) you can file a Paid Family Leave (PFL) claim. PFL provides for six weeks of benefits to eligible workers. EDD Website

With lots of schools closing, many parents are unable to work because they need to care for their children. If this is the case, you may be entitled to unemployment insurance benefits. However, there are eligibility requirements including whether you have any other care options and/or if you can continue working your normal hours remotely. You should contact an EDD representative to determine eligibility. EDD Website

If you work at a worksite with 25 or more employees, you may also be entitled to 40 hours of leave per year for school-related emergencies, including the closure of school or daycare by civil authorities. Whether the leave is paid or unpaid depends on the employer’s policies. You may be required to use your vacation or paid time off before you are allowed to take unpaid leave but the employer cannot require you to use paid sick leave. DLSE Website Reduced Work Hours

If your employer has reduced your hours or shut down operations due to COVID-19 you can file a claim for unemployment insurance, which provides wage replacement benefits. This is true for workers who have lost their job, or who have had their hours reduced through no fault of their own. Again, the normal one-week unpaid waiting period is waived. EDD Website

Other Wage Replacement

If you do not have any sick leave available, or if you do not have enough available to cover the amount of time you are out of work, you can use any other leave that is available to you based on your employer’s policies. For example, you may have vacation or paid time off that you may utilize. DLSE Website

If you are in a union, you may also be eligible for other kinds of compensation. You should check your union’s website, and/or with your union representative.

Discrimination & Retaliation

The question of what will happen if your employer discriminates against you or retaliates against you for having COVID-19 does not have a clear answer. Under California law, an employer cannot discriminate against you because you have, or the employer perceives you as having any physical disability, mental disability, and/or medical condition. However, the Fair Employment and Housing Act does not cover “mild” conditions that have little or no residual effect- including things like colds, seasonal flu, and minor or nonchronic gastrointestinal disorders. Because COVID-19 is a novel virus, and the impact is different for different people, whether or not it will be considered a disability under the Fair Employment and Housing Act will likely depend on how the virus impacts you.

Because this virus originated in China, we have heard some reports of discrimination against people based on their national origin, race, and ethnicity. Discrimination on these bases is prohibited by both California and federal law. If you believe you have been discriminated against based on your national origin, race, and/or ethnicity, contact our office so we can help evaluate any clams you may have.

It is illegal for an employer to interfere with any eligible employee’s right to take leave under the California Family Rights Act or discriminating or retaliating against an employee for taking a leave. If you are eligible for leave, and are discouraged or prohibited from taking it, and/or if you are retaliated against after taking leave, please call our office so we can discuss any claims you may have.

The state of California, as well as cities and counties, are continuing to put out updated information and recommendations so be sure to check the California and local authorities for updates. Other resources you may wish to consult are:

• https://www.cdc.gov/
• https://www.dir.ca.gov/dlse/
• https://www.dir.ca.gov/dosh/