This guest post was written for the San Diego Moms Blog by San Diego attorney Daphne Delvaux.
The American employment law system is not set up for job protections and financial support during a mass health and economic crisis. However, the State of California does have rights and financial benefits in place to protect workers during times like this.
It’s important for all California residents to know these rules, as you may hear in the media that you have no right to paid leave or no right to job protection during school closures. This may be incorrect if you work for a California employer. Now that COVID-19 is quite literally going viral, many mothers are left wondering how this will affect our health as well as our job security. With many of us being forced to homeschool while either working remotely or on a leave of absence, we are worried about whether we will be able to make ends meet to support our families. The California employment rules still apply to employers, even now. Employers still have a duty to keep the workplace safe, and still need to ensure no one is wrongfully terminated or subjected to discrimination.
With many mothers bearing the burden of school closures, we may be affected more than other workers as we will be the first ones who will need to call out of work. If we are still going to work, we are also concerned about bringing the virus home to our babies. This may cause a lot of mothers to resign, even though you may have job protections in place. Mothers are particularly vulnerable to job loss right now. I want to urge you to communicate with your employer to find common ground. A temporary leave of absence or a remote work accommodation would be a good compromise. Don’t leave your jobs unless you have absolutely exhausted all of your options. For you to know what your options are, you need to know your rights:
You May be Entitled to a One Week Leave of Absence Due to School Closures
Many mothers assume that they are only eligible to time off and protected from discrimination during or shortly after pregnancy. This is incorrect. Job protection for missing time off work due to childcare-related conflicts extends through the 12th grade. Under Labor Code 230.8, parents may take 40 hours off for school closures caused by emergencies and natural disasters. This rule only applies to you if you work for an employer with 25 or more employees. You must give notice of school closure. “Parent” includes parent, guardian, stepparent, foster parent or grandparent. “School” includes licensed child care providers, which would include kindergarten, preschool, and day care centers. The parent must use any PTO or unpaid time off for any planned absences.
So if there is a PTO policy, you are not entitled to additional time off. But if there is no PTO policy, you are still entitled to this time. Your employer may request verification from the school to confirm the closure. An employer may not fire a parent, demote, suspend, or otherwise discriminate against a parent for taking time off for the current school closure. If the parent is fired, he or she is entitled to reinstatement and reimbursement for lost wages and benefits. If the employer refused to reinstate the parent, the amount of these damages would be tripled. Make sure you know these rights. Many employers won’t know them and assume labor protections only cover pregnant women or the time period women’s children are newborn babies. This is untrue. The law put these protections in place so parents are not penalized for having children. This law is extremely relevant right now, so make sure to tell your friends.
The California Labor Code Protects Your Health and Safety at Work
The California Occupational Safety and Health Act dictates employers must provide a safe and healthy workplace for its employees. Labor Code §6400 requires every employer to secure a safe and healthy work environment. If you don’t feel safe at work because you fear exposure, this would be the law to assert. Please know that the law in and of itself does not qualify you to stay home. It just entitles you to have a safe workplace, but it’s up to the employer to take measures to keep you safe, which may include remote work. If your employer is not keeping you safe, or there are sick people at work that the employer is not sending home, your employer may be liable. You may not be terminated or treated adversely for complaining about not feeling safe.
By complaining about an unsafe work environment, you will be protected as a whistleblower, whether you make the complaint internally or through a public agency. As a whistleblower, you are protected from retaliation.
FMLA and CFRA Rules Provide a Job-Protected Leave of Absence if You or a Loved One Has the Virus
The FMLA or CFRA would only protect those who have the virus. The FMLA would not protect a person who has no symptoms. The FMLA is a federal law giving eligible employees the right to a 12 week leave of absence to attend to your treatment of the virus, or your care for a child, spouse or parent who has the virus. The CFRA is the California equivalent of this law. Both are used interchangeably.
Sadly, not everyone can receive FMLA Leave. If you are asking yourself, “Am I eligible for FMLA?” you’ll need to answer the following math test.
If you answered yes to all three, you are eligible for FMLA Leave. FMLA is generally unpaid, but California does provide state benefits. The FMLA also secures that this leave of absence will not result in job loss. So once you are cleared to return to work, your employer has to reinstate you to your job.
You Are Entitled to Three Paid Sick Days per Year
If you are not eligible for FMLA, or you don’t have the virus but you are still sick, you may still be able to take sick days. You are entitled to three paid sick days per year under California law, which may be used to care for a close family member. The City of San Diego may mandate your employer to provide additional days. Make sure to ask your employer how many sick days you’re entitled to. An employer may not retaliate for use of these days.
You May Be Entitled to an Accommodation if You Have the Virus
If your employer fears you have the virus, and intends to either put you on an unpaid leave or terminate your employment, you should first ask for alternative accommodations if you want to keep drawing a paycheck. Generally, under the California Fair Employment and Housing Act, employers with five or more employees can only terminate employees with disabilities if they cannot be reasonably accommodated. If you can do the job remotely, discuss your concerns with your employer and request a remote work accommodation.
You May Be Able to Receive Financial Benefits to Offset Wage Loss
California is one of the only states with a comprehensive financial benefits program. We are fortunate that this system is already in place, as we are now seeing how crucial these benefits are. To learn more about your financial benefits, review the EDD website. California residents:
These programs exist in addition to the regular disability leave benefits and bonding leave benefits. I would encourage anyone who may be out of work to immediately prepare their application. These programs will likely get inundated, and it’s best to be ahead of the crowd. Please know that your employer is not obligated to pay you if you are on a leave of absence (though they may). Your financial benefits are between you and the State of California. Some employers help the employees apply for their benefits, but many don’t, as they don’t have to.
Public Employees and Union Employees May Have More or Less Protections
The rules above apply to private employers, but if you are a public or union employee, you may have additional or sadly, less protections. The City of San Diego employees have an excellent leave policy, but the County employees do not have the same entitlements. Some public employers are exempt from state income taxes, and as a result, the employees may not be eligible for certain benefits. If you work for a public agency or you have a union, make sure to review the policies or the Collective Bargaining Agreement with a representative.
What You Should Do to Protect Your Job
I’m concerned about mothers being disproportionately impacted by the current crisis. We are the ones on the frontlines at home, keeping the kids calm, entertained, and educated, and this pulls us away from our job duties. You can protect yourself by keeping open lines of communication with your employer. Offer alternatives such as remote work, reduced schedules or job sharing. Cooperate with your employer and come up with creative solutions that are feasible for everyone involved. Explain how you will continue to get the work done. Commit to working during naps. If it proves to be impossible to work while you have kids at home, ask for a temporary leave of absence. It’s important you don’t say, “I can’t work right now and I don’t know when I’ll be able to come back to work.” Asking for an infinite leave may put your job at risk. Ask for a temporary leave of absence, then when the leave is up, ask for an extension if necessary.
Make sure to reach out to your mom friends. Educate each other, console each other, support each other. This is a difficult time for everyone. Whatever you need to do to survive this, do it. Be kind, especially to yourself. It’s okay to feel anxious. Anxiety is the natural reaction to a pandemic. But we will get through it, together.
Make sure to follow me on instagram to stay updated on your rights. There is a federal law coming that will give everyone additional protections and benefits. Follow me @TheMomAttorney.
If you have any questions about your rights, or you would like to discuss a conflict with your employer, please contact me at www.themomattorney.com.
DISCLAIMER – This blog is for educational purposes and to give general information and a general understanding of the laws relating to employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Momattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don’t know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.