Employees’ rights and the coronavirus, Part 1

Q:        I am a working parent with a school-age child, who has been sent home due to fears of infection from the coronavirus. My work entails interacting with people throughout the day. I want to take precautions, practice social distancing, and self-quarantine if necessary. However, I am worried about my job. What are my rights in the event that I need to stay home and not work due to the coronavirus?  

A:        The novel coronavirus aka COVID-19 was officially declared this week as a pandemic by the World Health Organization. The outbreak continues to sweep globally. There is a lot of information online, particularly from the Centers for Disease Control (CDC). Persons worried about contagion should attempt to educate themselves about how to stay safe and how to keep their families and others safe.

Our immediate concern in this column (and the area of our expertise) is not medical but legal. The vast majority of the population are workers/employees. If they need to be off work to avoid infection, is their job protected or can they be legally fired? If they go on leave, can they be paid while on leave? If they fall ill, how long can they be out of work on protected leave? Can they take leave if they need to care for a family member who has COVID-19? Can the employer require its employees to stay home? Can employees seek reasonable accommodation for staying home due to the coronavirus? And what happens if employers fire employees for taking leave? So many questions. But first things first.

In California, an employee working for 30 or more calendar days within a year is entitled to paid sick leave. An employer is required to provide a minimum of 3 days, or 24 hours, of sick leave per year. Paid sick leave may accrue at a rate of 1 hour for every 30 hours worked, and must be reflected on each wage statement. The law applies to full-time employees, as well as temporary, part-time, and seasonal employees. The law also provides paid sick leave to both non-exempt (hourly) and exempt (salaried) employees. Employees may begin using accrued sick leave on the 90th calendar day of employment.

In the alternative, an employer may use its own Paid Time Off (PTO) or sick leave policy if it accrues at the same or faster rate than the state-mandated accrual. Instead of waiting for sick leave accrual, an employer may provide the 3 days of sick leave up front at the beginning of the year. If the employer “front-loads” the amount of sick days in this way, sick leave may not be carried over to the next year. An employer may choose to cap the amount of paid six leave an employee may use per year to 3 days, or 24 hours, and the total amount an employee may accrue to 6 days, or 48 hours.

In the city of Los Angeles, specifically, employers must provide employees with a minimum of 6 days, or 48 hours, of paid sick leave per year. Sick leave will accrue at the rate of 1 hour for every 30 hours worked and can be capped at 72 hours. Employers must retain records documenting hours worked and paid sick leave accrued for 4 years.

Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or their family member. Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended (or likely required) by civil authorities. There may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. These situations may include exposure to COVID-19 or where the employee has traveled to a high-risk area.

Can the employer require a worker who is quarantined to exhaust paid sick leave? The answer is no, an employer cannot require that the worker use paid sick leave. Using paid sick leave is the employee’s choice. The employer can require that employees take a minimum of two hours of paid sick leave, if the employees chose to use paid sick leave. How much paid sick leave will be used is up to the employee.

Next week, we will discuss the all-important question: What if you run out of paid sick leave?

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a Presidential Awardee for Outstanding Filipino Overseas.]