California Employee Guide to COVID Law
Protecting employee rights during the COVID-19 pandemic
The 2020 COVID-19 pandemic has deeply impacted nearly every facet of American life. The workplace is no exception. Employers have always had both a legal and ethical obligation to provide safe workplaces to their employees. During the COVID-19 crisis, this obligation continues.
Employers must be held to account for violations of employment law, health and safety ordinances, and other actions, regardless of intent, that put employees in danger of contracting the virus.
If you have reason to believe your employer has violated your rights or knowingly exposed you to dangerous working conditions during this outbreak, please contact us. We are an experienced COVID employment lawyer, and we specialize in representing victims and their families as they pursue compensation and redress from negligent or malicious employers.
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True to its name, the novel coronavirus has put governments, employers, and employees in new and uncertain waters. Yet, there is a legal framework that informs what employers are required to do and what they are prohibited from doing. In the wake of COVID-19 arriving in our communities this spring, the State of California has provided employers with clear guidelines on what they need to do to provide their employees with a safe workplace.
There are several critical areas of employer responsibility:
- Disclosure: Without violating employee HIPAA rights, employers must disclose to their employees when one of their peers is ill or has tested positive. Failing to disclose or inadequately disclosing a suspected or confirmed COVID case is unlawful.
- Protection: Employers must provide all employees with face coverings, at no cost to the employee. Employers must also take additional protective measures, such as moving workstations six feet apart, sanitizing surfaces regularly, and providing frequent breaks for handwashing.
- Accommodation: Employers must reasonably accommodate employees as directed by the Americans with Disabilities Act.
- Paid Leave: Under the federal Families First Coronavirus Response Act, employees of companies with fewer than 500 workers are entitled to up to 80 hours of paid leave for COVID-19 related reasons.
As an employee, a violation of your rights in any of these four critical areas is potential grounds for a COVID-19 employment lawsuit here in California. If you believe there has been a breach in your rights under employment law, please call us for a free consultation so we can discuss the matter with you further.
Your legal rights as an employee during the COVID-19 pandemic
In March, Congress passed the Families First Coronavirus Response Act (FFCRA). The FFCRA addressed a major potential issue: employees should not have to choose between their paycheck and following health-driven mandates to quarantine after having COVID-19 symptoms or testing positive for COVID-19.
For employers with under 500 employees, the FFCRA mandates that they provide their employees with up to 80 hours of paid sick leave in the event that the employee has COVID-19 symptoms or has tested positive for COVID-19. In addition, FFCRA provides employees with 80 hours of paid sick leave at two-thirds pay to care for either a family member who is quarantined or a child whose school is closed for COVID-19 related reasons.
A number of exemptions and special rules may apply depending on the exact size of your employer. However, generally speaking, if you work for an employer with less than 500 total employees and you have been denied paid sick time to quarantine or recover from COVID-19, you may have a case. Please contact our office as soon as possible for a free consultation.
Mandated Employer Disclosures
What constitutes inadequate disclosure?
Providing Personal Protective Equipment (PPE)
In response to the COVID-19 pandemic, state, county, and local authorities have rolled out new requirements for personal protective equipment (PPE) that must be provided to employees.
- Our state now mandates that employers must provide protective face coverings (“masks”) to all workers, or provide them with funding to obtain them on their own. These face coverings must be worn in the workplace. If an employee qualifies for at least one of the exemptions to the state’s face covering policy, employers must make reasonable accommodations for them. For example, an employee who cannot wear a cloth mask should be provided with a face shield with a cloth barrier attached to the bottom of it.
- Depending on the industry, there may be other PPE requirements beyond this general mandate. Food packaging businesses, for example, are subject to additional sanitation rules, and may need to provide employees with face shields and gloves, depending on context. For an up-to-date industry-by-industry breakdown of PPE requirements, please visit the state of California’s website.
Accommodating pre-existing conditions and disabilities
Even in situations where they may be trying to do the right thing—such as identifying which employees are at the highest risk—employers violate the Americans with Disabilities Act if they ask their employees questions about their age, their prior medical history, or their national origin. As was the case before the pandemic, employers must make reasonable accommodations for employees with disabilities. State and county health officials have also instructed employers to allow any personnel who can work from home to do so.
If an employee informs their employer that they are sick, the employer is allowed to ask follow-up questions about the nature of their symptoms and the status of a COVID-19 test. This allows the employer to provide necessary disclosures to other employees.
Unsafe working conditions and protections for whistleblowers
In the event that a business is not following state, county, or local guidelines and protocols, essential employees cannot be forced by their employers to work in unsafe conditions.
When an employer fails to meet their obligations under the law or does not adhere to health regulations, employees have the right to report unlawful behavior without fear of reprisal. Our state’s laws protect whistleblowers who report violations of either law or regulation to the proper authorities. This includes the aforementioned health and safety mandates put in place by county and state officials.
Workplaces that retaliate against protected whistleblowers by terminating, demoting, or disciplining the employee are potentially liable under state law.
During this pandemic, keeping workplaces safe is paramount to the health and safety of every employee. By reporting unsafe working conditions, negligent employers, or willful disregard for health guidelines, employees not only protect themselves and their peers, but also help protect our communities as a whole by slowing the spread of COVID-19.
Understanding the workers' compensation exemption for fraudulent concealment
In the state of California, workers' compensation is considered the exclusive remedy in cases involving an employee's injury or death on the job. This is known as the "Single Remedy Rule." In a majority of cases, the employee or their surviving representatives must file and receive compensation through the employer's workers' compensation coverage.
Ultimately, this may result in less compensation for the victim. Workers' compensation covers some medical costs and certain benefits, but will generally not cover other damages, such as pain and suffering, the loss of earning potential, or other medical expenses.
There are several exemptions to the "Single Remedy Rule." One of these is the fraudulent concealment exception. In the event that the employer knowingly conceals the risk of injury from an employee who is then injured, the employee and their attorney may be eligible to proceed with a civil claim.
If an employer is aware of positive COVID-19 cases or COVID-19 symptoms among employees and does not adequately report this information to exposed employees in correlation with state law, it may meet the standard of the fraudulent concealment exception if those employees develop symptoms.
If your employer has failed to notify exposed employees about coworkers who are symptomatic or who have tested positive for COVID-19, call us so that we can discuss the details of your case with you.
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If you have been exposed to unsafe working conditions or have had your rights as an employee violated, you need to take action.
Please contact our experienced attorneys for a free consultation. We can review the exact circumstances of your case with you and provide you with a roadmap forward.