Following is our best assessment at this time of the coronavirus pandemic with respect to your employment. This assessment will change and be updated as additional information becomes available. There are numerous implications including but not limited to:
New federal law - including expansion of FMLA and sick leave benefits.
Governor Newsom’s declaration to stay at home.
Designation of “essential” employees meaning you don’t stay at home.
Union advice on how to approach the different elements of this pandemic as it affects your work.
Governor Newsom’s Executive Order to “stay home” seems pretty clear except that there is this idea that public employees can be designated “essential” and therefore still expected to report to work. What’s not clear at the moment is, “essential for what?”. Some employers are viewing all employees as essential and are using CA Government Code 3100 to designate employees “disaster services workers” which then leads to the “essential” designation. However, Section 3100 requires you take an oath and that a copy of your oath or affirmation be kept on file. This hasn’t likely happened for very many employees although we remember Trinity County requiring employees to take the oath. Google CA Government Code Section 3100 and you will see what it involves. If there is any question about whether you have signed an oath or affirmation as appears to be required under Section 3100 raise this question in writing or email with your supervisor, cc Personnel and your Union. Here is a sample:
It is not clear that I qualify to be designated a Disaster Services Worker” as I have not taken an oath as is described in Government Code Section 3100. Please clarify my status and what I am being ordered to do.
Some employers are sending employees home and either accommodating working at home (telework) or simply paying, at least for the foreseeable future, employees who are sent home but can’t telework.
Union advice if you are sent home is to put in writing or an email to your supervisor, cc Personnel and your Union, that because you have been sent home you want to confirm you are being paid “administrative leave” and not being forced to use your personal leave accruals. Contact your Union representative if there is any push back or dispute about being on paid administrative leave. A number of agencies have provided an initial grant of 160 hours of paid leave to use for this very purpose. Here are a couple of helpful bullet points to include:
Please confirm I am being “ordered” not to report to work.
Please confirm I am allowed to telecommute or if not able to that I am being paid “administrative leave” and not forced to use my own leave accruals.
Certain jobs make sense to be designated essential. Police officers, nurses, correctional officers, adult and child protection workers, water treatment plant operators, etc.
Other jobs, maybe not so clear, right?
The Union’s advice if you wish to challenge being designated essential is to submit a written or emailed request to your supervisor, cc Personnel and the Union, to:
Request confirmation you are deemed “essential”.
Request confirmation that you are being “ordered” to report to work.
Contact your Union representative if you wish to challenge your essential designation and remember, there is a whole list of reasons why you can take off work even if designated essential including something so simple as your medical provider taking you off work over concerns about the coronavirus.Review the reasons listed in HR 6201 later in this article.
Even if you are deemed essential and are ordered to work your employer should follow the protective measure intended to minimize exposure to the coronavirus such as disinfecting work places, social distancing, avoiding groups, hand-washing, staggered report times, alternate work schedules, etc.Failure to maximize safety is grounds for a formal complaint.Contact your Union representative if you are at work and safe practices are not being followed.
HR 6201 - The Families First Coronavirus Response Act provides a couple of new benefits set to be available April 2, 2020 and will sunset December 31, 2020. Many employers are allowing employees to take advantage of these provisions now. An important new benefit is the ability to take off work in a protected leave status to take care of your kids and another new benefit is a one time grant of 80 hours of sick leave.
The FMLA was amended to allow “Protected Leave” for you to be able to provide childcare for your kids if their school is closed:
From the statute: The term ‘qualifying need related to a public health emergency’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
The first 10 days may be unpaid or you can use accrued leave balances. After the first 10 days the employer must pay you 2/3 of your regular pay not to exceed $200 per day. You may supplement such pay with paid leave and/or SDI if your employer is enrolled in SDI.
To utilize this new FMLA leave put a request in writing or email your supervisor, cc Personnel and your Union representative. Mention HR 6201 and your need to be off work for child care because your child’s school is closed. Contact your Union representative if there is any problem or resistance to approval of the leave.
Also, HR 6201 provides paid sick leave for a pretty broad list of purposes, including school closures:
From the statute: (a) IN GENERAL
An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
(3) The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter H. R. 6201—19 has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.
(b) DURATION OF PAID SICK TIME
(1) IN GENERAL
An employee shall be entitled to paid sick time for an amount of hours determined under paragraph (2).
(2) AMOUNT OF HOURS.—The amount of hours of paid sick time to which an employee is entitled shall be as follows:
(A) For full-time employees, 80 hours.
(B) For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.
(3) CARRYOVER.—Paid sick time under this section shall not carry over from 1 year to the next.
As you can see from reviewing the foregoing, there many reasons why you may need to be absent from work. Union advice is that if you are exercising any of the foregoing reasons, cite the law and the reason. Here are a couple of samples:
Per HR 6201, I am caring for a person who is at risk from the coronavirus and will therefore not be able to report to work. Please utilize the 80 hours of federally granted sick leave provided by HR 6201 to continue my full pay and benefits.
Per HR 6201 and the FMLA I am staying home to care for my child as his school is closed. Please utilize the 80 hours of federally granted sick leave provided by HR 6201 to continue my full pay and benefits after which please integrate my paid leave in the order of vacation then sick leave accruals to integrate with the 2/3 pay rate I am to be granted after the initial 10 days (80 hours) is used up.
Or, use the foregoing bullet but integrate with SDI if you are eligible. Contact EDD.
Although it is unclear whether the version of the bill that was ultimately signed by the President provides the one time 80 additional hours of sick leave in addition to current sick leave accruals we believe it does and advise you to act as if it does.
Also attached is a PDF of webinar information presented a few mintes ago from the law firm of Weinberg, Roger and Rosenfield.
That’s what we have so far. Please stay in contact with your Union representatives if you have any questions or concerns and above all, stay safe!