Solidarity Against Racism and Police Violence – A Message from O&G

California Employee Rights

In addition to federal laws, employees who work in California may be entitled to protections under California laws. These include, but are not limited to:

California Unemployment Benefits

Unemployment Insurance (UI) is an employer paid program that provides partial income replacement when an eligible employee become unemployed or has their hours reduced.  UI benefits cover approximately 50 percent of wages, up to a maximum of $450 per week, and are taxable. Employees may file a UI claim in the first week of the separation from employment or reduced hours.

Employees need to meet certain requirements, including having sufficient past earnings and an immigration status that permits work. Self-employed, independent contractors may qualify for UI. Employers often misclassify employees as independent contractors and therefore may actually have the same rights as employees, even if they are labeled as independent contractors.

Most employment is considered covered employment for UI purposes.

If an employer closes the workplace due to COVID-19 and does not pay or only partially pays its employees, workers can apply for UI or, if eligible, State Disability Insurance (see more under SDI summary).

Employees who are temporarily out of work and plan to return to the same employer, do not need to meet the usual requirement of looking for work while they are collecting UI benefits.

Governor Newsom’s Executive Order waived the usual one-week waiting period for people who are unemployed as a result of COVID-19.

California Disability Insurance

State Disability Insurance (SDI) provides short-term benefit payments to eligible workers who have a full or partial loss of wages due to a non-work-related illness, injury, or pregnancy. Most California workers are covered by SDI through deductions from their paychecks (noted as “CASDI” on most paystubs). Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$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. Applications may be submitted within 49 days of the first date the employee had to stop working because of disability.

State Disability Insurance is available to employees or independent contractors who have enrolled in Elective Coverage. However, employers often misclassify employees as independent contractors.

Governor Newsom’s Executive Order waived the usual one-week waiting period for people who are disabled as a result of COVID-19.

The Employment Development Department is taking State Disability Insurance claims filed by employees who cannot work due to “having or being exposed” to COVID-19, if certified by a medical professional.

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.

California Paid Family Leave

Paid Family Leave (PFL) provides partial wage replacement benefits to employees who take time off work to care for a for a family member (child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner) or to bond with a new child entering the family through birth, adoption, or foster care placement. If eligible, benefits include up to six weeks of PFL with payment of approximately 60-70 percent of wages, up to a maximum of $1,300 per week for up to 52 weeks, and the benefits are tax exempt. More than 18 million California workers are covered by PFL, paid for by California workers that pay State Disability Insurance (SDI) taxes in the past 5 to 18 months.

PFL does not provide job protection; however, other federal or state laws such as the Family and Medical Leave Act (FMLA) (applies to employers with at least 50 employees in 20 or more workweeks in the current or previous calendar year) or the California Family Rights Act (CFRA) (applies to employers with at least 50 employees within a 75-mile radius) may provide such protection.

You may file for PFL if you are caring for an ill or quarantined family member with COVID-19, if certified by a medical professional.

California Paid Sick Leave

Under the Healthy Workplaces, Healthy Families Act of 2014, employees who work 30 or more days within a year from the start of employment – including full-time, part-time, seasonal and exempt employees – must receive one hour of paid sick leave for every 30 hours worked, beginning the first day of employment. At a minimum, full-time workers are entitled to three sick days every calendar year. All private and public employers, of any size are required to provide paid sick leave. Employees covered by qualifying collective bargaining agreements, In-Home Supportive Services providers, and certain employees of air carriers are not covered by this law.

Employees can take paid leave for themselves or for a family member for the diagnosis, care, or treatment of an existing health condition or preventive care, or for specified purposes for employees who are victims of domestic violence, sexual assault, or stalking.

An employee may use accrued paid sick days beginning on the 90th day of employment. An employer may limit the amount of paid sick leave an employee can use in one year to 24 hours or three days. Accrued paid sick leave may be carried over to the next year, but it may be capped at 48 hours or six days. Requests for leave may be made orally or in writing and workers cannot be required to find a replacement as a condition for using leave.

California Family Rights Act

The California Family Rights Act (CFRA) allows an employee to take 12 weeks of job-protected leave to care for himself or herself, in addition to a parent, spouse, domestic partner, minor child, or adult dependent child with a serious health condition.

To be eligible, an employee needs to have worked for an employer with at least 50 employees within 75 miles, worked for the employer for at least one year, and worked at least 1250 hours within that year. 

California Fair Employment and Housing Act

California’s Fair Employment and Housing Act (FEHA) protects applicants and workers from discriminatory business practices. The FEHA applies to public and private employers, labor organizations, and employment agencies and protects workers in the following protected categories:

  • Race, color;
  • Ancestry, national origin;
  • Religion, creed;
  • Age (over 40);
  • Disability, mental and physical;
  • Sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions);
  • Sexual orientation;
  • Gender identity, gender expression;
  • Medical condition;
  • Genetic information;
  • Marital status; and
  • Military and veteran status.

Employers with five or more employees are prohibited from discriminating against job applicants and employees because of a protected category or retaliate against them because they have asserted their rights under the law.

The FEHA prohibits harassment based on a protected category in all workplaces, even those with fewer than five employees.  Unpaid interns, volunteers, contractors, in addition to employees, and applicants are protected from illegal harassment.

An employer who treats an employee worse than other workers because of his or her race, national origin, or ethnic background is violating the law. This includes employer actions that single an employee out because of negative stereotypes.

If an employee has a disability such as an underlying medical condition that causes a compromised immune system, the employer may be required to provide the employee with a reasonable accommodation such as telecommuting. Complications from Covid-19 may also be considered a disability. In that case, the employer and employee should discuss the possibility of taking a leave from work as a potential reasonable accommodation.

Your employer cannot ask an employee to disclose the existence of a compromised immune system as it is likely to disclose a disability.

Your employer is required to keep all medical information about you private and confidential and therefore cannot reveal to others whether you have tested positive for covid-19.

If your employer fires you for not coming to work in compliance with a government directive, you may have a claim for wrongful termination in violation of public policy.

California Wage and Hour Protections

California law generally requires employers to pay “reporting time pay” under the applicable Wage Order.  If an employer sends an employee home after reporting to work because business is slow after an employee has reported for work, the employer is required to pay half of the employee’s scheduled hours for that shift.  (If the scheduled shift was for less than four hours two hours of pay are due.  A shift of eight hours shifts four hours of pay are due.)  Employees are also entitled to reporting time pay if they are required to call in soon before a scheduled shift and are told not to come in for that shift because business is slow.

If an employer sends employees home or directs its employees not to report to work because the employer has been encouraged or ordered to close the business or limit operations by government authorities, or otherwise is reasonably concerned about the safety of employees, then the employer is not required to pay you reporting time pay for your scheduled shift. However, you may be eligible to request paid sick days under the federal Families First Coronavirus Response Act.

California Rights Related to School/Daycare Closures

Pursuant to California Labor Code section 230.8, employers with 25 or more employees working at the same location in California, must provide employees with up to 40 hours each year to address an emergency at their child’s day care or school. A closure because of the coronavirus qualifies as such an emergency. However, employees must still notify their employer ahead of time that you intend to take this time off.

Employees may be eligible for Unemployment Insurance if they have exhausted all other care options but have to miss work to stay home with their child because of a school closure. 

Beginning April 3, 2020, under the ‘Families First’ Coronavirus Response Act, 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. 

Cal-COBRA

Cal-COBRA generally requires employers with 2 to 19 employees to provide their employees (and their dependents) the right to continue health insurance coverage for up to 18 months after a qualifying event occurs. Health coverage protection for larger group sizes of 20 or more fall under Federal COBRA laws.

Employees should get a notice in the mail about their COBRA and Cal-COBRA rights when they are eligible for them – when their job ends or their hours are cut. Employees have 60 days after being notified to sign up.

Cal-WARN

The California WARN Act requires that employers employing 75 or more people, give a 60-day notice to the affected employees and appropriate government officials, prior to a plant closing or mass layoff.

Governor Newsom’s Executive Order N-31-20 (PDF) temporarily suspends the 60-day notice requirement in the California WARN Act for those employers that give written notice to employees and satisfy other conditions. The suspension was intended to permit employers to act quickly in order to mitigate or prevent the spread of coronavirus. The Executive Order does not suspend the California WARN Act in its entirety, nor does it suspend the law for all covered employers (those with 75 employees or more).

San Francisco City Employee Rights

San Francisco Paid Sick Leave

The San Francisco Paid Sick Leave Ordinance (PSLO) requires employers to provide paid sick leave to all employees (including temporary and part-time employees) who perform work in San Francisco.  Employees earn 1 hour of paid sick leave for every 30 hours worked.

Employers with 10 or more employees may cap an employee's sick time balance at 72 hours.  Employers with fewer than 10 employees may cap an employee's sick time balance at 40 hours. 

The Workers and Families First Program was recently expanded to provide paid sick leave to private sector workers who have been impacted by the COVID-19 pandemic.

Employees can use this program after they have exhausted their currently available sick leave under SF, state, or federal laws, and their employer agrees to extend sick leave beyond current benefits.

Employers cannot require employees to provide a doctor’s note or other documentation for the use of paid sick leave taken pursuant to the Paid Sick Leave Ordinance during the duration of the Local Health Emergency

The San Francisco’s Office of Labor Standards Enforcement (OLSE) currently states that eligible employees may use paid sick leave for the following reasons:

  • Sick;
  • Public health officials or healthcare providers require or recommend an employee quarantine to prevent the spread of disease;
  • Employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s (DPH) March 6, 2020 guidelines or any subsequent updates.  As of March 6, 2020, a “vulnerable population” is a person who is 60 years old or older or a person with a health condition such as heart disease, lung disease, diabetes, kidney disease, or weakened immune system;
  • Caring for a sick family member;
  • A temporary work closure in response to a public official’s recommendation,
  • Caring for a child who is home because of school/daycare closures in response to a public official’s recommendation; or
  • Providing care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine.

Published: March 24, 2020