On September 27, California Governor Gavin Newsom signed into law Senate Bill (SB) 1162, which will require nearly 200,000 California companies with 15 or more employees to disclose pay ranges starting next year. What does it mean for job seekers? Besides providing them with critical information before they pursue a job opportunity, it gives potential employees some assurance that they will not face pay discrimination because of their age, race, ethnicity, gender or other characteristic. When pay ranges are disclosed, it informs job seekers where to focus their efforts and provides confidence that they will be paid as much as any other applicant for that same job.
Even though the Equal Pay Act became U.S. law more than 50 years ago, pay disparities have been an ongoing blight on the American workplace. Pay disclosure laws could finally eliminate this blight. Such laws provide a host of important benefits, helping employers think through the value of the jobs they post while providing realistic expectations to those in the job market. Ultimately, requiring transparency of pay ranges could finally bring pay equity to the workplace where prior efforts have failed. It has been a long time coming.
It’s a well-known fact that women earn a lot less than men. For the year 2021 it was about 83% of what their male colleagues made, according to the Bureau of Labor Statistics. As alarming as that sounds, it’s nothing compared to how Black and Latino women have fared. The 2022 Equal Pay Day for Black women was September 21, meaning they had to work an extra 263 days to earn what White men earned in 2021.
The causes and reasons for pay disparities have been studied and documented at length. In some companies, women have been undervalued, relegated to subservient roles, and denied status in the workplace. Oftentimes, pay disparities are due to overt discrimination. And laws mandating equal pay – on the books in every state, as well as at the national level – will keep failing to close the gap as long as attitudes are unchanged and legal remedies are anemic.
But greater pay transparency could be the cure to address some of these failures. It isn’t rocket science, and it doesn’t require complicated economic calculations. If every company were to simply post the pay range for the jobs they sought to fill, the gap would actually begin to narrow. Laws to this effect have already been implemented, and data shows that the gender gap can move in the direction of closure as a result. According to the National Women’s Law Center, “Revealing a position’s salary range is an important negotiation prompt and provides some brake on pay discrimination in initial offers.”
Colorado adopted the first such law in 2021, requiring employers to include pay ranges in job postings. Early research shows that the law actually boosted labor force participation by 1.5%. In other words, Colorado employers had an easier time filling jobs because applicants felt better about applying for positions where the pay range was disclosed. This is no surprise given that 98% of all workers believe that employers should disclose salary information in job listings and more than half would refuse to even apply for a job if the salary range is not disclosed, according to a recent survey.
With a growing number of states enacting pay range disclosure laws, the results should be significant. In its letter supporting SB 1162, California’s pay range disclosure law, CELA and other advocacy groups stated as follows: “Research shows that when job applicants are clearly informed about the context for negotiations, including the salary range, women are more willing to negotiate, more successful in negotiating, and the gender wage gap narrows.”
All workers could be impacted by these laws. For multistate employers, we can expect to see pay ranges posted for all positions, regardless of where the worker resides. In addition, under SB 1162 employers will not only have to disclose pay ranges for new hires, but also for current employees who request the pay range for their own position. Armed with more pay information for the same or similar roles, this new law could provide current employees with a legitimate basis for negotiating higher pay for themselves.
Ultimately, these pay transparency laws should be a game-changer for closing wage gaps within companies. This is good for workers and good for employers – when employees know they are being treated fairly, morale and productivity rises, which are key factors in retaining employees who do a good job.
Civil rights attorney V. James DeSimone, of V. James DeSimone Law of Marina del Rey, has dedicated his 36-year law career to providing vigorous and ethical representation to achieve justice for those whose civil and constitutional rights are violated. His team represents individuals and families in employment, police misconduct, school abuse, and personal injury cases. You can find out more about their work at www.vjamesdesimonelaw.com
With the economy opening back up and a post-pandemic hiring boom around the corner, more and more employers will be turning to artificial intelligence (AI) and algorithms to save costs and streamline hiring and recruitment. Massive data collection, machine learning, and other advanced computational techniques are transforming traditional pre-employment assessments to help employers assess the skills, aptitude, and fit of prospective workers.
So, what do these new technologies mean for workers?
To explore this question, the Department of Fair Employment and Housing will be hosting the first-ever virtual public hearing on algorithms and bias this Friday, April 30th. The hearing will be from 10:00 AM – 3:00 PM PST, with the employment section from 10:00 AM – 11:40 AM. You can RSVP using this link and tune in via Zoom.
As employers increasingly move to automating hiring and other HR functions, it is imperative that we explore the growing role of algorithms in the workplace and assess whether our existing labor and employment laws are adequately protecting workers’ rights. For example, websites like Facebook use a vast amount of user information to target ads to a precise audience. Unlike the traditional paper ads placed in the classified section, accessible to all those who pick up the paper, the new world of micro-targeting means you only see opportunities that are targeted to you. Facebook’s “Affinity Group” feature categorizes users based on interests and demographics, allowing advertisers to precisely target their desired audience. This can be used to limit ad delivery to specific age bands, such as those from ages 18-38.
Consider Facebook’s “Lookalike Audience” feature, which allows the ad buyer to import a “sample audience,” using a variety of data points that includes demographics information, from which Facebook can generate a target ad audience that “looks like” that sample. When used in the employment context, a sample audience with skewed demographics — such as a tech firm with overwhelmingly white, young, and male staff — will result in a target ad audience that is similarly skewed.
You’d be right to wonder how these features could possibly withstand scrutiny under our anti-discrimination laws. In 2019, Facebook settled a lawsuit brought by national civil rights groups and agreed to make significant changes to the way these features are used for housing, employment, and credit ads.
These Facebook features present obvious issues, but other forms of algorithmic hiring tools can make discrimination virtually impossible to detect. Our friends at Upturn have done a nice overview of the kinds of tools being deployed in each step of the “hiring funnel” — the process by which prospective applicants turn into new hires. Here are a few examples at each stage:
At the “screening” stage:
Employers may use employee assessment tools to measure the skill, personality, or other traits of applicants. For example, the tool asks applicants to play games to measure traits such as processing speed, memory, and perseverance. The data is used to predict and rank who is the best match with the best performers of the employer’s workforce.
This means that the applicants that are selected to advance will likely mirror the existing workplace demographics.
At the “interviewing” stage:
Employers may record an applicant’s interview using technology capable of facial recognition. Verbal responses, tone, and facial expressions are recorded to analyze word choice, enthusiasm, and other criteria in order to predict future job performance.
This means that applicants who do not speak English as a first language may perform poorly.
At the “selection” stage:
Employers may use automated background check tools that trawl for information online in order to flag potential risks in hiring an applicant. For example, a tool can automatically analyze an applicant’s social media history to determine the likelihood of that person to engage in toxic behavior. The tool may also surface information that reveals information that is otherwise protected from disclosure
This means that an otherwise qualified applicant may be denied a job because a tool misinterpreted a previous social media post or revealed information about private health information.
These are just a few examples of how AI and algorithms have been used in the employment context. What’s clear is that there is so much more that we don’t know and we hope that Friday’s hearing is the first of many to explore this important topic. As worker advocates, we must ensure that our state agencies are staying engaged on these issues and that our employment laws are developing in a way that keeps pace with these evolving technologies. In addition to Friday’s hearing, you can also view an issue briefing CELA recently co-hosted on this same topic here.
This video, from CELA member Erin Pulaski, provides legal information about receiving paid time off if you need to care for a loved one experiencing symptoms of the new coronavirus.
To help workers struggling during the COVID-19 crisis, the California Employment Lawyers Association (CELA) is creating a series of videos explaining workplace rights and resources. We want California residents to understand their options.
Erin Pulaski has been consistently recognized for her advocacy on behalf of employees and executives. From 2015 to 2019, she was named one of the Top Women Attorneys in Northern California by San Francisco Magazine and recognized as a Super Lawyers “Rising Star” (a distinction given to no more than 2.5% of lawyers in the state). She has achieved the highest possible rating of “Superb” on Avvo.
Erin represents employees and executives in all aspects of employment litigation, including wrongful termination, discrimination, retaliation, harassment, wage and hour, and unpaid commission claims. She represents clients in both state and federal court, in arbitration, and through trial and appeals. She also handles confidential prelitigation negotiations on behalf of clients. Read more: https://rezlaw.com/erin-pulaski/
This past week, nurses at UCLA’s Santa Monica Hospital protested publicly for not receiving adequate personal protective equipment (PPE). Similar protests have been popping up all around the country as front-line workers demand that employers take appropriate measures to keep them healthy and safe. Already, too many workers have needlessly and tragically lost their lives in the line of duty. While the COVID-19 pandemic has presented unique and significant challenges for employers to provide their employees with a safe workplace, they need to be doing more.
Common sense and compassion for people providing vital
services should lead to companies doing everything they can to provide necessary
protections for the safety of their employees during this unprecedented time. If
the moral imperative is not enough, employers should know they have a legal
obligation to do so.
California Labor Code Section 6401 states: “Every employer shall furnish and use safety devices and safeguards, … which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
Given what we know about the new coronavirus, providing masks, gloves, soap, and sanitizing products should be mandatory for employers whose employees have to come into contact with the public. Yet there are countless stories of front-line workers being denied these necessary precautions. In a recent Freedom of Information Act (FOIA) request by The Washington Post, the Occupational Safety and Health Administration reported there were over 3,000 coronavirus-related complaints filed from January through early April. That number does not even include all of the complaints filed with state agencies, like California’s Cal/OSHA, which is similarly inundated with employee complaints.
Besides health and safety equipment and protocols, what about
employees, many in vulnerable positions based on health considerations and the
virus threat, who request to work remotely?
Here, state law also offers some protection. If an employee has a disability that would make that employee more vulnerable to the virus and requests an accommodation to work at home, refusal to do so could violate California’s Fair Employment & Housing Act (FEHA). Similarly, if an employee lives with someone who has a disability that makes them more vulnerable to the virus, the employee should request an accommodation to work at home in order to minimize the risk to the person they live with. Refusal to grant the request could violate the FEHA because an employee who is “associated with” a person with a disability also has accommodation rights.
Importantly, an employer must also reimburse an employee for any expenses incurred by the employee to obtain necessary safety equipment or to otherwise keep themselves safe (yes, that protective equipment made from store bought swim goggles and trash bags is reimbursable). Even lodging costs may be reimbursable under state law if an employee is forced to self-isolate away from home because they live with someone who has the virus or is vulnerable to the virus.
If an employee requests safety equipment, safer working conditions or safety accommodations, including working at home, and the employer retaliates by terminating the employee, suspending them, or imposing another hardship, the employee may have legal recourse. Threats, intimidation or coercion to require any employee to take unreasonable safety risks, including the threat of termination, can constitute a violation of Civil Code § 52.1, which prohibits persons from interfering, or attempting to interfere, by threat, intimidation, or coercion, with the exercise or enjoyment of rights secured by the Constitution or laws of the United States or California. California Labor Code §§ 6310 and 6311 make it unlawful to retaliate because of safety or health complaints and protect employees who refuse to perform hazardous job duties. Health and Safety Code § 1278.5 also specifically prohibits retaliation against health care whistle-blowers.
The legal consequences of those protective measures make it even more imperative that companies adhere to their obligation to provide safe workplaces. For those employers that do not take that obligation seriously or, worse, retaliate against their employees, California law provides robust protection. If workers continue to face unsafe working conditions or retaliatory conduct, they should exercise their legal rights and consult with an employment lawyer.
In this new reality, we understand businesses are facing immense pressure, but they must remember – workers’ lives are at stake. Now is the time for businesses to rise up to the challenge and do everything reasonably necessary to protect their employees.
Civil rights attorney V. James DeSimone, of V. James DeSimone Law of Marina del Rey, has dedicated his 36-year law career to providing vigorous and ethical representation to achieve justice for those whose civil and constitutional rights are violated. His team represents individuals and families in employment, police misconduct, school abuse, and personal injury cases. You can find out more about their work at www.vjamesdesimonelaw.com
This video, from CELA member Ella Hushagen, provides legal information about your health insurance options following a job loss.
To help workers struggling during the COVID-19 crisis, the California Employment Lawyers Association (CELA) is creating a series of videos explaining workplace rights and resources. We want California residents to understand their options.
Ella Hushagen is a member of CELA and an attorney with Teukolsky Law. She graduated cum laude from Occidental College in 2004, and pursued a career in health care access before attending law school. She graduated from UCLA School of Law in 2013 (J.D.), and simultaneously received a Masters Degree in Public Health. In law school, Ms. Hushagen specialized in public interest legal advocacy as a participant in the prestigious Epstein Public Interest Law Program. She met Ms. Teukolsky after her second year of law school while serving as a law clerk at Traber & Voorhees, one of the premier civil rights firms in California. After graduating, Ms. Hushagen served as a law clerk to the Honorable Fernando M. Olguin at the U.S. District Court for the Central District of California.
This video, from CELA member Lauren Teukolsky, provides
legal information about expenses incurred while working from home for your
employer.
To help workers struggling during the COVID-19 crisis, the California Employment Lawyers Association (CELA) is creating a series of videos explaining workplace rights and resources. We want California residents to understand their options.
Lauren Teukolsky launched Teukolsky Law in 2017 after practicing law for 17 years at some of California's most prestigious civil rights law firms and organizations. A cum laude graduate of Harvard College (B.A.), Ms. Teukolsky graduated in the top 10 of her class at UCLA School of Law (J.D.), where she was an Articles Editor for the UCLA Law Review and won the law school's Read More https://www.teuklaw.com/lauren-teukolsky.html
To help workers struggling during the COVID-19 crisis, the California Employment Lawyers Association (CELA) is creating a series of videos explaining workplace rights and resources. We want California residents to understand their options. This video, from CELA member Nina Baumler, provides legal information about parental rights in relation to school closures during this emergency.
Originally from England, Nina Baumler is a wage and hour attorney in Los Angeles, California. In her solo practice, Ms. Baumler represents low-wage workers in some of the most vulnerable sectors of the workforce, including car-wash workers, janitors, caregivers, restaurant workers, security guards, truck drivers and other low-wage economies. Ms. Baumler regularly co-counsels with non-profit organizations in wage and hour and fraudulent transfer/successor liability cases and is an advisory board member of The Wage Justice Center.
By Andy Katz.UPDATED: March 27, 2020 with more details on new unemployment insurance benefits (incl. from the federal stimulus bill); health insurance for furloughed or laid off workers; tax credits; which jobs are deemed essential; and more.
As COVID-19 spreads, many workers are considering how to protect themselves and their families – while worrying about their work and budgets.
The
California Department of Public Health had previously issued “social
distancing” recommendations and other guidance to protect public health, urging
vulnerable populations including people who are 65 years or older, in addition
to people with certain health conditions such as heart disease, lung disease,
diabetes, kidney disease, and weakened immune systems. Several County
Public Health Departments, including Alameda,
Contra
Costa, San
Francisco, San Mateo, Santa
Clara, Santa
Cruz, and Sonoma
Counties also include people who are 60 years or older within vulnerable
populations. A UCSF
Expert Panel advised: “Anyone over 60 stay at home unless it’s critical.”
Assessment of what workers should do to be safe, and the role they could
play in helping slow the spread of the virus is beyond the scope of an article
about legal rights. However, it is clear from recent advisories that workers
have legitimate reasons for concern. Many people want to heed the call of
public-health experts to stay home out of concern for the heightened risk of
severe complications for vulnerable populations. Understanding how current laws
may protect them is critical information to have as workers weigh these
important decisions and advocate with their employers for what they need. This
post provides an overview of where workers stand as of today, bearing in mind
that many advocacy groups, including CELA
(California Employment Lawyers Association) and its national counterpart, NELA, are pressing Congress and the California
legislature to offer even more protection and much-needed relief to California
workers as they try to make the choices that are best for themselves, their
families, and society at large. Read on for important answers to frequently
asked questions about California workers’ rights in the time of COVID-19.
I’M LOSING WAGES. WHAT WILL HELP?
California Workers Can Apply for Wage Replacement for Disability and
Reduced Work Hours
Two state-run programs are available for employees in need of wage
replacement during a “Shelter in Place” order, and to support
social distancing for their health and safety – Unemployment Insurance (UI) and
State
Disability Insurance (SDI), both administered by the Employment Development
Department (EDD). Governor Newsom’s Executive
Order waived the usual one-week waiting period for people who are
unemployed and/or disabled as a result of COVID-19.
If an employer closes the workplace due to COVID-19, including as a
result of a “Shelter in Place” order, and doesn’t pay or only partially pays
its employees, workers can apply for Unemployment Insurance (UI) or, if
eligible, SDI. Unemployment Insurance benefits cover approximately 50
percent of wages, up to a maximum of $450 per week, which is taxable. The Federal CARES Act
adds $600 to each weekly benefit check, extends the maximum weeks of UI
benefits from 26 weeks to 39 weeks, and allows retroactive payment of benefits
for income loss beginning January 27, 2020.
The Act also provides advance payments of a tax credit to taxpayers of
$1,200 per adult plus $500 per child. These
tax credits phase out for individuals earning $75,000 – $99,000 or couples
earning $150,000 – $198,000.
State Disability Insurance eligibility defines disability to include any
illness or injury preventing regular or customary work. Benefits cover
60-70 percent of wages up to a maximum of $1,300 per week for up to 52 weeks,
and are tax-exempt. A worker must be unable to work for at least eight days,
and must submit medical certification by a health practitioner prior to
issuance of benefits. Electronic certification options are available for health
practitioners. Applications may be
submitted within 49 days of the first date they had to stop working because of
disability.
While the EDD hasn’t yet confirmed that applications citing only age-related
vulnerabilities will be approved, they have confirmed that people who cannot
work due to “having
or being exposed” to COVID-19, if certified by a medical professional, can
file a Disability Insurance claim.
Older workers who are in an age-defined vulnerable population and
who obtain medical certification of their age-related condition as an “illness”
may also be eligible for disability benefits, although there is no
certain answer to this question yet. When doctors or other healthcare providers
are filling in the disability forms, they should consider using “R54,” the
International Classification of Diseases code for “age-related
physical debility” when there isn’t a more specific condition.
EDD also administers Paid Family
Leave (PFL) benefits, allowing up to six weeks of PFL at the SDI rate to
Californians who are unable to work because they are caring for an ill or
quarantined family member with COVID-19, if certified by a medical
professional.
WHAT IF I’M LOSING MY HEALTH INSURANCE DUE TO BEING FURLOUGHED OR LAID OFF?
The Federal
and California
COBRA laws require employers with at least two employees to offer continuation
of the employer-sponsored health plan for up to 36 months at the same monthly
rate the employer paid for the premium.
Laid off employees can also choose to enroll in a health plan offered
through Covered California, where
subsidies available under the Affordable Care Act may offer less expensive
coverage than the employer’s COBRA plan.
The Special Enrollment Period to enroll in a plan through Covered
California lasts 60 days from losing job-based coverage. Due to the emergency, special
enrollment is open for all Californians until June 30, 2020.
WHAT IF MY CHILD’S SCHOOL IS CLOSED
BECAUSE OF CORONAVIRUS?
Federal Response, California School Emergency Leave and Unemployment
Benefits May Help Some Workers
If you miss work to care for your child after their school closes, you may
be eligible for Unemployment Insurance. The Employment Development Department
is handling school closure applications on a case-by-case basis, and
encouraging claims for partial benefits where the employer is allowing reduced
hours, but has not yet clarified whether the usual requirements of being
available for work will be waived where the employer does not allow reduced
hours. Employees should apply right away since the usual 7-day waiting period
for benefits has been waived due to COVID-19.
Once the ‘Families
First’ Coronavirus Response Act goes into effect April 1, employees who
have worked for a covered employer more than 30 days will be eligible for
twelve weeks of leave, paid at two-thirds of regular pay, up to a maximum of
$200 per day or $10,000 total.
Also, under California’s
Labor Code, employers with 25 or more employees working at the same
location must allow employees to take up to 40 hours of leave per year to
address an emergency at a child’s day care or school. However, an employee must
still notify the employer in advance.
WHAT IF I GET SICK, OR I NEED TO CARE FOR
FAMILY?
State and Local Sick or Medical Leave Laws Offer Protection
Employees who are sick can take accrued paid sick days. How many sick days
are available depends on employer policies, although California requires
employers to provide minimally three days of paid sick leave and some cities
require even more. Employees who work for employers of 50 or more people have
more rights and may be eligible for up to twelve weeks of unpaid time off.
Employees sent home but are asked to work must be compensated for that work
without loss of sick leave.
For people who work for an employer with at least 50 employees within 75
miles of their worksite, California law requires employers to provide twelve
weeks of job-protected leave each year under the Family Medical Leave Act (FMLA)
or the California
Family Rights Act (CFRA) for a “serious health condition” of the employee
or a member of their family. To qualify for this leave, the employee must have
worked for the employer for at least one year total during their lifetime and
have worked at least 1,250 hours in the last calendar year. So, if an employee
or family member contracts COVID-19, they are likely to be protected by the
medical leave laws. These laws may also protect individuals with compromised
immune systems if a doctor takes them off work because they or a family member
suffer from a chronic condition.
It’s important to understand that FMLA and CFRA leave is unpaid
(although State
Disability Insurance may be available).
California’s Disability Rights Law Provides for Reasonable
Accommodation
The law requires employers to consider offering work-from-home or medical
leaves of absence as a reasonable accommodation under the California Fair
Employment and Housing Act (FEHA) for people who qualify as having a
disability under the law. This is a case-by-case analysis, but employees with
compromised immune systems or who are medically at risk should assert their
rights and request the accommodations they need to remain safe.
California employers with at least 5 employees are required to
provide reasonable accommodations, unless they are able to meet a very
high standard to prove that doing so would cause an undue hardship.
Legal Aid at Work has a very helpful guide on how
to request a reasonable accommodation. The best practice is to
submit written documentation of the disability and the need for the
accommodation, including a doctor’s note. If that’s not possible given the
impacted healthcare system, employees can explain their need for accommodations
to their employer and refer to publicly-available information to justify the
need for reasonable accommodation.
The extraordinary conditions and risks of COVID-19 will broaden the range of
employees who qualify for reasonable accommodations under FEHA. Disability
under FEHA is broadly construed to mean a physical disability, including a
condition that affects the immunological system and limits a major life
activity. The law already recognizes that “major life activities” include
interacting with others, working, and major functions of the immune
system. There is an exception that refers to the common cold and common
flu, but there is nothing common about COVID-19, so that exception should not
apply.
The goal of reasonable accommodations is to keep the employee working (and
earning a paycheck). So the first possibility to consider is telecommuting. Telecommuting
is a reasonable accommodation where it allows the employee to continue to
perform the essential functions of their job. For employees who can
work via computer, video-conferencing and phone, this is an ideal choice.
Employers can refuse this accommodation if letting the employee telecommute
imposes an undue hardship on the employer’s operations.
If a job cannot be done remotely, a last-resort accommodation is a leave of
absence, which is an
option under the law where “the leave is likely to be effective in allowing
the employee to return to work at the end of the leave, with or without further
reasonable accommodation, and does not create an undue hardship for the
employer.”
Employers cannot have blanket policies refusing telecommuting or medical
leaves (or any other possible accommodation). Instead, employers must engage
in a good faith interactive process to find an effective reasonable
accommodation.
Discrimination or retaliation against a person with a disability,
including disciplining them, treating them differently than other workers or
terminating them is prohibitedunder
California law. This protection extends to people who the employer assumes
or “regards” as a person with a disability. While employers can require medical
documentation of a disability and the employee’s limitations, they cannot force
employees to disclose a specific health condition or disability.
WHAT IF SOMEONE I LIVE WITH IS VULNERABLE
TO COVID-19?
The California
Family Rights Act (CFRA), discussed above, requires twelve weeks of
job-protected leave for covered employees caring for a “serious health
condition” of a family member. Up to six weeks of Paid Family
Leave (PFL) benefits are available through the EDD.
Employees are also protected under the California Fair
Employment and Housing Act (FEHA) from discrimination or
retaliation, such as harassment or wrongful termination, due to a known
relationship or association with someone with a known disability. This
includes making a request for a reasonable accommodation, whether that request
is granted or not. While no court has ruled yet on the specific issue of
whether an employer must grant an accommodation based on a family member’s
disability, one
Appellate Court considering this issue discussed the
possibility that the law “may reasonably be interpreted to require
accommodation based on the employee’s association with a physically disabled
person.”
It is highly recommended to review this type of complex situation with an
attorney familiar with employment law.
WHAT IF I AM OR COULD BE EXPOSED TO
COVID-19 IN MY WORKPLACE?
Employer Illness and Injury Prevention Programs
In furtherance of its mission to ensure safe workplaces and enforcing
requirements for all employers to have an Injury and Illness Prevention
Program, Cal/OSHA has issued Interim Guidelines for General
Industry and other specific industries, like childcare providers and
health-care workers, from COVID-19. These guidelines include actively
encouraging sick employees to stay home, sending employees with acute
respiratory symptoms home immediately, and preparing an outbreak response plan
in the event of an outbreak.
State disability and medical privacy laws generally prevent an employer from
asking an employee about their medical conditions. However, employers can ask for a medical
examination or about disability issues if there is a reasonable belief, based
on objective evidence, that an employee’s ability to perform essential job
functions will be impaired by a medical condition, or that a medical condition
will pose a direct threat. For example,
if an employee confirms to an employer they have COVID-19, the employer should identify
everyone the infected employee was in contact with during the CDC-identified
14-day period, notify the identified individuals of possible exposure, and
could consider sending the exposed employees home for 14 days. Employers may not disclose the names or personal information of the employee
who tested positive.
For an employee who is concerned about workplace safety,
“internal” whistle-blowing is a protected activity when a
complaint is made to a manager that identifies facts that could violate
Cal/OSHA requirements. For more serious situations, formal complaints can be filed
with Cal/OSHA, and written documentation could assist if the employer
disputes that internal whistle-blowing occurred.
An employee may also refuse to perform work that would result in a Cal/OSHA
violation that creates a real and apparent hazard to the
employee or their coworkers, and may seek back pay for lost wages. More information on workplace safety standards
is available from WorkSafe,
a nonprofit research and advocacy organization.
These situations are complex, and consultation with an
attorney is highly recommended, because an employer can take the position that
an undocumented failure to go to work is a non-retaliatory business reason
to terminate employment.
IS MY JOB REALLY ESSENTIAL?
The State
Public Health Officer has issued a list of “Essential Critical Infrastructure Workers.”
Disability accommodation and workplace safety requirements still apply when
performing essential work. Determinations
of which precise businesses and functions are deemed “essential” are made by
the California Department of Public Health and County Health Officers, and in
some cases local police departments have closed non-essential workplaces.
Worker’s Compensation
Employers are responsible to provide compensation through the worker’s
compensation system for injuries arising in the course of employment.
An injured worker who was exposed to and contracted COVID-19 at or
through their work can make a claim by completing DWC1 form
and sending it to their employer.
Any workplace exposure must be a significant contributing factor to an
employee’s injury for a claim to be compensable. Employers frequently dispute
whether an injury is work-related. Those disputes are typically resolved by the
Worker’s Compensation Appeals Board based on the medical report of a Panel
Qualified Medical Examiner appointed by the Division of Worker’s Compensation,
likely a specialist in Immunology or Internal Medicine.
If the claim is approved, benefits include temporary disability wage
replacement, medical care, and compensation for permanent impairment.
Unfortunately, misclassified independent contractors who are employees under
the new “ABC
Test” of AB 5 (2019) are not eligible for worker’s compensation until July
1, 2020.
More Protections Needed During this Public Health Emergency
Additional protections are needed during this public health emergency.
California Governor Gavin Newsom, members of the California Legislature, and
the United States Congress have announced plans to introduce legislation that
may further protect workers subject to an isolation or quarantine order by a
health official from discrimination or retaliation, or offer better wage
replacement for people who are in quarantine or caring for family members.
Stay tuned to this post for ongoing updates.
Andy Katz is the principal of Law Offices of Andy Katz, fighting for workers' rights, consumers, and environmental protection. His law practice focuses on workplace discrimination and retaliation, wage theft, workers’ compensation, and health and disability insurance denials. He previously advocated for public health issues before the California legislature. He is a member of the California Employment Lawyers Association (CELA).
Web: www.andykatzlaw.com
Worries about job security and
remaining healthy at work are heightened for pregnant moms and new parents during
the COVID-19 pandemic. While it is a public health emergency, not all employers
are taking the same steps in how they alter business, leaving uncertainty for
some employees. Here we answer frequent
questions about parental leave for California employees in the midst of the
outbreak
Q. Can I demand to work remotely if I’m afraid of getting
the new coronavirus in the workplace?
A. Under California’s Pregnancy Disability Leave law, if you work for an employer with at least 5 employees, you are entitled to reasonable accommodations for a condition related to pregnancy, childbirth, or a related medical condition. If your health care provider advises that you need to work remotely to protect your health or pregnancy and you can perform the essential functions of your job, your employer will need to grant your request. If you are unable to perform the essential functions of your job remotely, then your employer does not need to accommodate your request but will be required to either temporarily transfer you to a position that will permit you to work remotely for the time you are affected by pregnancy or provide you with a job-protected leave of absence.
Following Governor Newsom’s March 19, 2020 “Stay at Home” Executive Order, many employers are taking steps to facilitate remote work. If your employer already has put measures in place for employees to work from home, you may request the same accommodation if those measures can be applied to your job.
Q. Can I take a leave of absence during my pregnancy if
I’m afraid of getting COVID-19?
A. During the time of COVID-19, pregnant women
may be advised by their doctor to work remotely or, if this is not possible, to
take a leave of absence. If your doctor recommends that you take a leave of
absence because you are disabled by pregnancy, childbirth, or a related medical
condition, you are entitled to up to four months of job-protected leave. If your pregnancy-related disability extends
longer than four months, you may be entitled to more than four months of leave
as a reasonable accommodation.
Q. My doctor placed me on a leave of absence because my
employer would not allow me to work remotely. My employer has now moved
everyone to remote work. Can I begin working again?
A. Yes. If your employer decides to
implement remote work protocols, your employer must reinstate you as soon as reasonable
accommodations are available that will permit you to perform the essential
functions of your job.
Q. If I require a leave of absence for my pregnancy, does
my employer have to pay me?
A. Under ordinary circumstances, if
you are taking leave because you are disabled because of pregnancy or to bond
with your new baby, your employer does not need to pay you while you are on
leave. However, you can use any sick and vacation leave you have accrued.
Additionally, you may be eligible for State Disability Insurance (SDI) and Paid
Family Leave (PFL) during this time, which would provide you with 60 or 70% of
your normal weekly wages. If you are
taking leave under the Pregnancy Disability Leave Law, the New Parent Leave
Act, or the California Family Right Act, then your employer must also maintain
your health benefits.
If you work for an employer with
500 or fewer employees and your health care provider advises you to self-quarantine
during your pregnancy due to concerns about COVID-19 or you are experiencing
symptoms of COVID-19 and are seeking a medical diagnosis, then your employer
may be required to pay you for 10 days for emergency sick leave under The
Families First Coronavirus Response Act.
Q. Can I be laid off while I’m taking disability or
parental leave?
A. Your employer cannot include you
in a layoff if the reason for the layoff is that you are pregnant or taking a
job-protected leave. However, your employer can include you in a layoff or
reduction in force if you would have been laid off even if you weren’t pregnant
or taking leave.
Q. What benefits can I receive if I’m on leave or laid
off?
A. A variety of benefits may
provide partial wage reimbursement if you are laid off during your pregnancy or
taking a job-protected leave of absence. You can apply for these benefits
through California’s Employment
Development Department (EDD). Such partial wage replacement benefits may
include:
Short term disability—during the time you are
disabled because of pregnancy, childbirth, or a related medical condition, you
may be entitled to short term disability benefits.
Paid family leave—if/when you are no longer disabled,
you may be eligible for up to 6 weeks of Paid Family Leave benefits while you bond
with your new baby (8 weeks starting July 1, 2020).
Unemployment Insurance—when you are available to work
but do not have a job to return to, you may be eligible for unemployment
benefits.
Q. My child’s school/daycare closed due to COVID-19. Can
I work from home?
A. There is no law that requires
employers to permit employees to work from home because a child’s school or
daycare has closed. However, the California Labor Code and the The
Families First Coronavirus Response Act require your employer to provide
you with time off of work.
California’s
Family School Partnership Act requires employers with at least 25 employees
to provide you with up to 40 hours of leave for a school or childcare related
emergency. A school related emergency includes the closure or unexpected
unavailability of your child’s school or childcare provider. Unfortunately,
this provision does not apply if your child’s school or daycare remains open
even if you would prefer to keep them home due to concerns of the new coronavirus.
The
Families First Coronavirus Response Act requires employers with 500 or
fewer employees to provide employees with 2 weeks of emergency paid sick leave
and 12 weeks of emergency family leave when workers need to care for their child
under 18 years old if the child’s school or place of care has been closed or when
their childcare provider is unavailable. For the 12 weeks of emergency family leave,
you must have worked for your employer for at least 30 days.
Q. What is a good approach for discussing
my rights with my employer?
A. Be professional and patient without risking your health
or the health of your pregnancy or child. It is important to ask your employer questions
in a professional manner. If your employer doesn’t have immediate answers, give
them the opportunity to obtain accurate information. But never risk your own
health or the health of your pregnancy or child. If your doctor or other health
care provider advises that you require accommodations or a leave of absence
immediately, let your employer know in writing and follow your health care
provider’s advice. If your employer requests a doctor’s note, provide one to
them as soon as it’s feasible.
Benefits and protections available to employees impacted by COVID-19 are evolving and you are encouraged to check with the websites of the Labor and Workforce Development Agency and the Employment Development Department of Californiawebsites for the most updated information regarding your rights as an employee in California and the benefits that may be available to you. Also, visit Legal Aid at Work’s Roadmap and Guide to see how your right to leave and wage replacement work together. You may also contact Sarah Schlehr at sarah@pregnancylawyer.com if you have questions about your rights.
Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.
社区法律援助机构Legal Aid at Work提供了“如何申请合理工作安排”的指南。在申请合理工作安排时最好的做法就是提供残疾和工作安排要求的书面文件，包括医生证明。如果因医疗系统受损而无法提供这类文件，雇员可向雇主解释或提供可资参考的公共信息，证明合理处所的实际需要。比如说，加州公共卫生局鼓励高危人群“呆在家中”，三藩市公共卫生局则敦促工作人员“尽可能远程通勤”，并“避免接触患病人士”。
加州职业安全局（Division of Occupational Safety and Health – “Cal/OSHA”）提供了为应付COVID-19的有关指引。该指引覆盖大部分行业，包括托儿和医疗，积极鼓励有病患的雇员呆在家里，将有急性呼吸道症状的员工立即回家，做好疫情爆发的反应预案。针对健康护理行业的雇员，指引还强调了培训、操作实践以及个人保护设施的使用等方面。
