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Know Your Rights:
COVID-19

Know your rights : COVID-19

As COVID-19 consumes our daily lives, impacting every one of us, you need to know how to protect yourself financially, physically,and emotionally. We want to help!

The California Department of Public Health issued “social distancing” recommendations and other guidance to protect public health. The department urged 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, to social distance.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."

We are all coming to terms with a pre-existing and newly emerging body of law that can and will protect and impact workers. How these laws can serve you is critical information. We have formatted the information in the form of Frequently Asked Questions.

During this COVID-19 crisis, workers in essential businesses are reporting fears about whether they are safe at their workplace. The overriding concern for most workers is their chance of being exposed to the virus. Matters such as a lack of personal protective equipment (PPE), failure to implement appropriate social distancing, and lack of products to sanitize hands or workspaces are common. Some employees have protested; others have refused to report to work and refused to perform specific tasks. If you have concerns regarding your employer's protection against COVID exposure, Call Andrea Cook and Associates. We can help.

The answers are general and may not reflect how these laws may impact you specifically. The information on this site is an overview of a large body of law and is not complete, but an initial summary for your consideration.

Laid-Off Worker Options

I have been laid off as a result of COVID-19

California Workers Can Apply for Wage Replacement for Disability and Reduced Work Hours. A layoff can be overwhelming. Please take the time to do your research. Each agency has an in-depth list of questions and answers. Also, you can contact your HR department with specific questions. Take your time. You can do this!

If you do not have access to an HR department, you can contact the specific state or federal agency.

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.

The EDD has outlined how self-employed, independent contractors can qualify for unemployment benefits.

State Disability Insurance is only available for independent contractors who have enrolled in Elective Coverage.

Workers are often misclassified as independent contractors and may have the same rights to benefits as employees, even if your employer calls you an independent contractor.

The CARES Act specifically extends Pandemic Unemployment Assistance to self-employed individuals for up to 39 weeks of lost income between January 27 and December 31, 2020.

If you believe you have been misclassified as an independent contractor, please CALL US to assist you.

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 a medical certification by a health practitioner prior to the 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.

The EDD has confirmed that people may collect if they have been exposed to COVID-19 if certified by a medical professional, and can file a Disability Insurance claim.

Older Workers

If you are an older worker in an age-defined vulnerable population and obtain a medical certification of your age-related condition as an “illness,” you may be eligible for disability benefits. When contacting your doctor or other healthcare providers, ask that they consider using form R54,” the International Classification of Diseases code for “age-related disability” if there isn’t a more specific condition.

EDD also administers Paid Family Medical 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 should I do if I’ve lost my insurance due to a furlough or layoff?

California COBRA requires employers to offer their health plan for up to 36 months at the same monthly rate the employer paid for the premium. If this is not available to you or is too expensive, you are entitled to enroll in Covered California, a health plan offered through the state. Subsidies are available through the Affordable Care Act. You have 60 days to enroll from the date you lose your job. OPEN ENROLLMENT IS AVAILABLE UNTIL JUNE 30, 2020.

What if I can’t work to care for my child, whose school is closed?

Federal Response, California School Emergency Leave, and Unemployment Benefits May Help Some Workers

You may be eligible for unemployment insurance. The EDD is handling these on a case by case manner, encouraging claims for partial benefits where the employer is allowing reduced hours. Apply right away since the usual 7-day waiting period for benefits has been waived due to COVID-19.

The Families First Coronavirus Response Act provides that covered employees who worked for a covered employer for more than 30 days are eligible for twelve weeks of leave, paid at two-thirds of regular pay, up to $10,000.

The California Labor Code states that 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 daycare or school. However, an employee must still notify the employer in advance.

What if I am needed to care for my family, or I get sick with the Coronavirus?

State and Local Sick or Medical Leave Laws

Each company determines sick leave. The law requires at least three days of paid sick leave. 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 who are sent home but who are then asked to work must be compenseted for that work without loss of sick leave.

The Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code §§ 245-249, 2810.5) requires all California employers to provide eligible employees at least three days of paid sick leave. Los Angeles, San Diego, San Francisco, Santa Monica, Oakland, Berkeley, and Emeryville also have local ordinances requiring as much as six or nine days of sick leave per year.

Employers risk liability for wrongful termination lawsuits if they retaliate against employees for taking sick leave that is required by law. What is clear is that the legally-required amounts of sick leave aren’t enough, especially if a worker is trying to get through a 14-day quarantine, or faces uncertainty with vulnerable members of their household. Workers, who are often misclassified as independent contractors, have the same rights to sick leave as employees under AB 5, even if their employer calls them an “independent contractor.” If you believe you are a misclassified employee, you can speak to a lawyer or contact the Local Labor Board.

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. These laws protect your job while you are recovering or caring for a family member. 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.

If you or a family member contracts COVID-19, you 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.

What if my health or circumstances make me vulnerable to COVID-19?

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. Employees with compromised immune systems or who are medically at risk should assert their rights and request the accommodations they need to remain safe. Working from home may require special equipment or specific working conditions.

You are entitled to ask for a reasonable accommodation. If you would like advice or assistance on how to request and obtain an accommodation, please call us.

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.

The goal of reasonable accommodations is to keep you working. 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 person can’t perform the job remotely, last-resort accommodation is a leave of absence. Employers cannot have blanket policies refusing telecommuting or medical leaves (or any other possible accommodation). Instead, they must engage in a “good faith interactive process to find effective reasonable accommodation.”

If you believe that your employer is unfairly failing to provide reasonable accommodation, please call us.

The law prohibits retaliation or discrimination against a person with a disability; this includes unwarranted discipline or differential treatment.

If you believe you were terminated or treated differently because of a disability, contact us to see if we can be of assistance.

What if I care for someone vulnerable to COVID-19?

You may be entitled to protected leave under FMLA. You may request a reasonable accommodation from your employer to help you deal with your family member.

We strongly recommend an attorney familiar with employment law review this type of complex situation. This is a complex legal situation, and you should consult with a lawyer as this area of the law is not well settled.

What laws protect me if I am exposed or subjected to likely exposure to COVID 19 in the workplace?

If there is a confirmed case of COVID-19, your employer should identify everyone the infected employee was in contact with during the 14 days and notify the individuals of possible exposure. Employers may not disclose the names or personal information of the employee who tested positive.

If you believe that you have been exposed and your employer is aware of the exposure and fails to alert you, please give us a call so that we can be of assistance.

If you are concerned about workplace safety, the law protects whistle-blowers. If you believe you are working for an employer who is placing you or your co-workers at unnecessary risk, please contact us.

You can refuse to work in a dangerous situation where there is a real or apparent hazard. This is a complex legal issue, and you should consult with an attorney before taking any action. If you are in error, you may be terminated.

How do I know if my job is 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. In some cases, local police departments have closed non-essential workplaces.

What if I am infected with the COVID virus while at work?

Employers are responsible for providing compensation through the Worker’s Compensation system for injuries arising in the course of your employment. You must prove that the workplace is a contributing factor to the infraction. Our office does not handle Worker’s Compensation claims, but we are happy to refer you to a law firm that does.

We have done our best to summarize what we believe are the applicable protections for workers faced with the COVID-19 virus. However, this is a moving and constantly changing target. For up to the minute information or a complete answer to your question, please call us.

Protecting Clients due to COVID-19 Nursing Home neglect

Our team here at Andrea Cook & Associates hopes that you and your family are healthy and safe during these unprecedented times.

As you may know, we are working remotely and doing all that we can to continue pushing your cases forward and continue to keep our lines of communication open. As always, please call us at any time should you need anything.

We are currently representing those who have lost a loved one due to neglect in nursing homes. Our hearts and prayers are with those of you who have lost loved ones to the Coronavirus, and we are here to help you hold those accountable for your loss. Contact us today to discuss your specific case and needs.

Additional Resources

Review of Families First Coronavirus Response Act

California COVID-19 Home Page

California Department of Public Health

California Labor & Workforce Development Agency

LWDA Summary Chart of Benefits

Employment Development Department Coronavirus FAQs

Department of Labor Standards Enforcement FAQs

Department of Fair Employment and Housing Regulations

Legal Aid at Work FAQs – English – Spanish – Chinese

U.S. Equal Employment Opportunity Commission Guidance about the ADA and COVID-19

WorkSafe Coronavirus Updates

UCLA Law Library COVID-19 Reference List

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