Who is Covered by the Current Law?

Under the current law, employers with fewer than 50 employees within a 75-mile radius were not required to provide family or medical leave to their employees. Likewise, employers with fewer than 30 employees within a 75-mile radius were not required to provide baby-bonding leave under the New Parent Leave Act. The employer size requirements left many employees without any job-protected leave to care for their own medical conditions, their family members’ medical conditions, or the birth or adoption of a new child.

Who Will Be Covered by the New Law?

In January, if your employer has five or more employees and you are otherwise eligible, your employer is required to provide 12 workweeks of unpaid job-protected leave during any 12-month period for reasons covered by the law. During this unpaid leave, employers will be required to pay for and maintain the employee’s group health plan for the duration of the leave. Job protection means that once an employee returns from their protected leave, he/she must be reinstated to the same or a comparable position. Job protection provides employees with certainty that they will have a job when they return from caring for themselves or their loved ones.

What Changes Will There Be to the Qualifying Reasons for Taking Leave?

As the law currently stands, covered employees are entitled to take medical leave to care for a serious health condition for themselves, their child, a parent, a spouse, or a domestic partner. The new law expands the coverage and allows employees to take leave for the serious health conditions of additional family members including grandparents, grandchildren, and siblings. This is a welcome change that recognizes that families come in a variety of shapes.

Am I Eligible To Take Leave?

To be eligible for the 12 weeks of job protected leave, in addition to working for an employer that has five or more employees, an employee must have been working for the employer for one year or more, and must have worked 1,250 hours or more during the 12 months preceding the leave. Although you must have worked for the employer for a total of 12 months, this can now be 12 nonconsecutive months, as long as you have worked for the employer for 12 months over the course of a seven-year period.

What About Leave for the Birth of a Child, Adoption, or Foster Care Placement?

Currently, eligible employees are also allowed to use their 12 weeks of leave for the birth of a child, or the placement of a child in connection with adoption or foster care of the child by the employee. This coverage will not change. However, there are expanded protections for parents who work for the same company. Under existing law, if both parents worked for the same employer, the employer was only required to provide 12 weeks total to both parents for bonding with a newborn, adopting or foster care placement. The new law will require the employer to provide 12 weeks of leave to each parent.

What if I am covered by both CFRA and FLMA?

The federal Family Medical Leave Act provides 12 weeks of job protected leave to employees who have been employed for one year or more and have worked 1,250 or more hours during the 12 months preceding the leave, and who have worked at a location where there are 50 or more employees within a 75 mile radius. A covered employee can take FMLA leave to care for his/her own serious health condition, or for the serious health condition of the employee’s child, parent, or spouse. Eligible employees can also take the 12 weeks of leave for bonding with a newborn, or for the adoption or foster care placement of a child. Currently, if an employee is covered by both CFRA and FMLA, those two leave run concurrently. So for example, if you take leave to care for a new baby and you are covered by both CFRA and FMLA, you only get 12 weeks of leave total, not 24.

However, with the expansion of the California leave law, there may be circumstances where an employee who is covered by both CFRA and FMLA may be entitled to a total of 24 weeks of job-protected leave. For example, under the new CFRA rules, a covered employee can take 12 weeks to care for a grandchild’s serious health condition. However, grandchildren are not covered by FMLA, so it would not apply. Therefore, if the same employee needed 12 weeks to care for his/her own serious health condition, the employee could take that time under FMLA and have an additional 12 weeks of FMLA leave.

These changes are long overdue and a welcome change to the family leave laws in California!

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/