Understanding Your Rights as a California Employee
As the pandemic continues to spread to unprecedented levels throughout California, more and more businesses are nevertheless continuing to work. As an employee, you are likely already concerned about possible exposure, especially if your boss is failing to follow local, county, and state guidelines or enforce basic safety protocols.
Unfortunately, it is more statistically likely than ever that you could become exposed to COVID-19 when outside your home in California. As an employee who is not working from home, you may be concerned about what legal options are available to you should you become exposed or test positive. Below, we review the relevant California laws protecting employees exposed to COVID-19 and what you should do if you test positive or are asked to isolate.
California’s Supplemental Paid Sick Leave
A new piece of California legislation went into effect on September 19th, 2020, codifying that employees forced to miss work due to COVID-19-related reasons must be compensated with a certain level of Supplemental Paid Sick Leave (CSPSL). In other words, if you are forced to isolate as a result of a COVID-19-related incident, you may be able to receive compensation until it is safe to return to work.
Only qualifying employers are subject to CSPSL rules. This includes any employer with over 500 employees, nationwide, or any healthcare worker in a company with fewer than 500 employees. Qualifying employers must award a maximum of 80 paid CSPSL hours to workers who are forced to isolate.
Employees must be actively employed by a qualifying company in order to be eligible for CSPSL compensation. They also must be required to leave their home in order to perform their job duties; those that can telework, or work from home, are not eligible.
A qualifying employer must pay some level of CSPSL compensation when an eligible employee experiences any of the following events:
- An employee is required to isolate as a result of a local, state, or federal quarantine order involving the COVID-19 pandemic. If any level of government issues a targeted lockdown order that precludes an employee from traveling to a worksite or otherwise leaving their home, but an employer can continue to conduct business, the affected employee must be compensated.
- They are ordered to isolate by a licensed healthcare professional due to COVID-19-related concerns. This is a broad category that include a number of scenarios, including exhibiting symptoms consistent with COVID-19, testing positive for COVID-19, or being exposure to someone who is confirmed to have tested positive for COVID-19. In any of these situations, a healthcare professional is likely to recommend that you isolate for as many as 2 weeks, at which point you will become eligible for CSPSL compensation.
- They are ordered by their employer to isolate and not come to work due to COVID-19 related concerns. An employer may ask an employee to return home and not report to work for a set amount of time due to COVID-19 transmission concerns. If an employee does not look well or is exhibiting symptoms common to COVID-19 patients, they may be asked not to work to protect fellow employees and customers. In situations where an employer is voluntarily requesting an employee not work, they must offer CSPSL compensation.
There are a few additional things to consider when determining if you qualify for CSPSL support. If a loved one in your household tests positive for COVID-19 and you are forced to support them, you can likely deliberately miss work to care for them and qualify for CSPSL. This is because you have a confirmed exposure to COVID-19, and according to CDC guidelines, you are expected to isolate. You may need to procure a note from a doctor confirming this recommendation.
It should also be noted that you have a right to seek medical care, including COVID-19 testing. An employer cannot intimidate you into not seeking a test, even if they believe you are likely to test positive and thus must miss work.
How Much Will I Receive from CSPSL Compensation?
The amount of your CSPSL entitlement depends on your employment status and rate of pay. Full-time or salaried employees are entitled to the equivalent of 80 hours of pay, with the rate determined by the last complete paycheck before work was missed or the local or state minimum wage, whichever is higher. This is the equivalent of two weeks of pay, the recommended isolation period for those exposed or infected with COVID-19. It should be noted that, regardless of pay rate or salary, an employee cannot receive more than $511 per day or $5,110 in total.
If you are a part-time employee, the amount of CSPSL compensation you can receive stems from the number of hours you work. Generally, the number of payable hours will be derived from the average number of hours worked leading up to the COVID-19-related absence. The pay rate per hour is identical to full-time employees: the hourly rate before isolation or the state or local minimum wage, whichever is higher.
You do not have to request CSPSL compensation in one, single chunk. If you only need to isolate for one week, for example, but you are entitled to the full 80 hours, you can receive 40 hours of your total amount. If you have a possible exposure that only requires you isolate for 2 days before receiving a test, but then later have a second possible exposure necessitating another 2 day isolation period, you can receive two separate payments of 16 hours each.
Note that your absence from work must be the direct cause of some COVID-19-related incident in order to qualify for CSPSL support. An illness unrelated to COVID-19 will not entitle you to take leave protected under the new law.
How Your Employer Is Required to Disperse CSPSL
Your employer is legally required to be forthright with you about the amount of CSPSL compensation that is available to you. This statement must be either included as an itemized amount on your wage statement or via a separate document issued on the same date as your paycheck. Employers must also disseminate information about employee rights involve CSPSL, either through physical postings throughout a worksite or via electronic notices like email.
The dispersal of CSPSL support cannot be conditional on the providing of medical documentation. While it can be a good idea to maintain records of healthcare recommendations and COVID-19 test results, an employer cannot withhold CSPSL support and demand proof of your need to isolate. The verbal or written request for CSPSL is considered sufficient to initiate dispersal.
CSPSL support cannot be deducted from any existing sick pay, accrued vacation days, or any other form of paid time off (PTO). CSPSL entitlements are distinct from all types of PTO, and an employer cannot compel you to use sick pay or PTO in lieu of seeking of CSPSL compensation. Should you need to isolate or recover for a period longer than your CSPSL allotment, however, you are permitted to use sick pay or other forms of PTO to make up the difference.
If your qualifying employer refuses to disperse CSPSL entitlements despite your being eligible, you may be forced to file a wage claim with the State of California’s Labor Commissioner’s Office. Withheld CSPSL support is treated the same as any other type of wage theft, though you will likely be expected to provide documentation supporting your claim that you needed to isolate as a result of COVID-19.
CSPSL rules are presently set to expire on December 31st, 2020. If the Families First Coronavirus Response Act (FFCRA), a federal piece of pandemic legislation, is extended, CSPSL support will be automatically extended by the same amount. Should CSPSL expire (on December 31st, 2020 or any time thereafter) in the midst of a qualifying isolation period, a worker is permitted to claim the full remaining hours, even if the absence extends past the expiration date.
COVID-19 Workers’ Compensation
As of September 17th, 2020 and currently through January 1st, 2023, California has also instituted new rules surrounding workers’ compensation for those suffering from COVID-19 infections. When certain conditions are met, workers that fall ill or pass away due to a COVID-19 infection may become become eligible for workers’ compensation.
In order to qualify, an employee must have tested positive for COVID-19 within a 14 period after a day they worked outside their home on or after July 6, 2020. (Employees working from home are not eligible.) The leaving the home must have been directed by the employer, which would include common scenarios like needing to come to an office or conduct job duties at any other worksite. The employer must have at least 5 employees. If each of these conditions are met, it is presumed that an employee was infected with COVID-19 through the course of their employment and are therefore eligible for workers’ compensation.
Alternatively, an employee can also become eligible if they test positive for COVID-19 in the midst of an “outbreak” at their worksite. The definition of an outbreak depends on the number of employees at the worksite.
For purposes of determining workers’ compensation eligibility, an outbreak is considered:
- A worksite with 100 or fewer employees in which at least 4 employees test positive for COVID-19
- A worksite with greater than 100 employees in which 4% or more employees test positive for COVID-19
- Any worksite that is ordered to be temporarily shut down by a government authority for fear of an ongoing or imminent COVID-19 outbreak
If you are eligible for workers’ compensation under these new rules, it is possible that your employer will push back. An employer may attempt to rebut your claim by presenting evidence that they took steps to prevent or reduce odds of COVID-19 transmission at the worksite. They can also submit evidence that there is a reasonable chance that you were infected with COVID-19 elsewhere.
We Can Help You Navigate COVID-19 Issues in the Workplace
Learning that you have been exposed to COVID-19 or testing positive yourself can be a frightening experience, especially if you develop symptomatic and are worried about the health and safety of your loved ones. The last thing you should be worrying about is your financial security surrounding your employment. While these new California laws have given employees new tools to procure workers’ compensation and support to proactively isolate, some employers may refuse to honor these rights.
If this regrettable situation occurs, you will need professional legal representatives prepared to advocate for you. Attorney Bill Marder of Marder Employment Law has over 25 years of legal experience vigorously defending and assisting workers in situations of all kinds. Our team is empathetic to the unique challenges of this pandemic and are prepared to help you navigate any COVID-19-related conflict involving you and your employer.
If you have been exposed to COVID-19 but are struggling to exercise your employee rights, call (888) 796-4010 or contact us online to schedule a free virtual consultation.