Coronavirus And The Workplace: What You Should Know About Your Rights

Speaker 1: 00:00 You can see it if you're still driving in the mornings around San Diego, there's a dramatic decrease in the number of cars on the road. Some businesses have shut down completely because of Corona virus restrictions, but many more are scrambling to stay in business and provide needed services by allowing employees to work from home. And it's good to remember that employees and their employers still have rights and responsibilities even during a pandemic. Joining me is Dan Eaton, an employment law attorney and partner at seltzer Caplan McMahon and Vtech and Dan, welcome to the program. Thank you very much. Can individuals request to work from home if they're worried about getting Corona virus? Speaker 2: 00:42 Well, you can always ask. So let's start there. Uh, the question is whether you have some sort of a bright, uh, to work from home. And that really depends on whether there's a reasonable, whether you have a reasonable basis for believing that going into work subjects you to some sort of a health risk at this point that's not entirely clear. But you expect that the law of the workplace is going to be leavened with some common sense and ethics on the part of employers. Speaker 1: 01:12 We've gotten a few questions from working seniors who governor Newsome advised to self isolate. Can they make the case that they should work at home? Speaker 2: 01:22 They can make that a case because they're part of the vulnerable population, uh, people who are 65 and older and those with our chronic health conditions. So the argument would be that because they're part of the vulnerable population, going into work may very well subject them to unique risks that require them to stay at home. Understand that a lot of this is being driven not so much by legal authorities but by public health authorities. And that is exactly as it should be, Maureen. Speaker 1: 01:54 Now if employers ask only their older workers or people with health conditions to stay home and do their work, isn't that some sort of discrimination, age discrimination or something like that? Speaker 2: 02:05 Well, it sounds like age and disability discrimination, doesn't it? Except the issue here is that it's neither of those two things because they're not being asked to work from home because of their age or because of their disability. They're being asked to work from home because they pose a unique health risk and understand that under a California law, employers are required to quote furnish employment and a place of employment that is safe and healthful for the employees they're in. So a close quote. So that means that employers as part of their overall duty to maintain a safe workplace can require those that pose a unique risk to themselves and to others to stay at home and work. Speaker 1: 02:49 So if working remotely actually makes it harder for someone to get their work done, can an employer still require an employee to work from home? Speaker 2: 02:58 Yes, the Speaker 1: 03:00 is that an employment relationship carries with it a corresponding right of the employer to control the manner in which a job is done and if that job is harder as a result of staying home, that is part of the employers prerogative. Even understanding that the employer is going to have to expect, uh, presumably some loss of productivity as a result of that mandate. Now, if a business is forced to close temporarily, like bars are being directed to do, can an employee of that business file for unemployment insurance? Speaker 2: 03:35 The answer is almost certainly, yes. And here we have an issue here with uh, the uh, federal authorities getting involved. There has been some action in Congress and there is a bill that the president is expected to sign, uh, that does address things like unemployment, which is normally handled at the state level. But there is some, uh, potential reimbursement there. But the bottom line is if the, if people lose their job or, or suffer a temporary separation of employment, they certainly should look into applying for unemployment benefits. And in fact, the state itself I understand is working on expanding the ability to get unemployment benefits for temporary work stoppages. But again, this is something that people have to pay very close attention to. What is a very rapidly moving situation both with respect to the law and with respect to public health. Speaker 1: 04:26 Would that also apply for people who have their hours reduced because of the coronavirus closures? Speaker 2: 04:33 The short answer is yes. The right to unemployment does sometimes kick in when there is a severe reduction in hours. But again, this is something that uh, the uh, state EDD and uh, which is, uh, of course, uh, overseas, uh, the labor regulations and the division of industrial relations and so forth. They have very, very good information and people should go to their websites if they have specific information because again, this is rapidly evolving. We are in uncharted territory here. The law is going to do its best to keep up as it always does, but there are going to be some questions that you're going to have to rely on the regulators to answer as they deal with what is a uniquely challenging situation. Speaker 1: 05:18 Well, here's another situation that is unique to what we're going through now. Does a workers sick leave kick in? Can you take sick leave if you are not sick, but some for some reason you're forced into quarantine. Speaker 2: 05:32 The key word in that question, Maureen, is can because it's left up to the employee as to whether they want to opt to take a sick leave for preventative purposes, which is what you're talking about there and sick leave does kick in there even if you're asymptomatic, but for the purposes of keeping yourself from getting a sick, yes, you can use sick leave for that purpose. Speaker 1: 05:57 Now, most schools Speaker 2: 05:58 in the County have told parents to keep their kids at home. The schools are closed. What if a parent has to stay home because their child is out of school and they don't have alternate childcare? Are they protected from losing their job? A couple of things here. State law has a, a school emergency law which allows parents up to 40 hours a year, uh, for a school emergencies. And this certainly would qualify, but more to the point, uh, the, uh, legislation that Congress is working on explicitly addresses this situation where parents are required, uh, to leave, to take care of a child who school has closed, even if that child is not himself or herself sick and explicitly allows them job protected, paid sick leave, uh, to address that situation. Speaker 1: 06:48 I don't know if you're going to know the answer to this, Dan or not, but, um, I thought I'd ask you as an employment law attorney, if the coronavirus keeps people in doors and slows down commerce, how long do you think it's going to take before we see workplaces going out of business and workers losing their jobs? How long can most businesses stand a shutdown like this? Speaker 2: 07:09 Maureen, that is an excellent question. And the answer, candidly, without being too glib, is blowing in the wind because we don't know. And it depends on the nature of the workplace and the resources that they have. There are going to be some businesses for which this is an Essex general crisis that will present itself within the next few weeks. Others with greater resources or a vet or not as directly dependent on the movement of people and commerce will have a longer runway, but we just don't know. The fact is though, that there are some businesses that are going to go out of business as a result of this. Even if this is over in the next few weeks and no one really expects that to happen, we have to pay attention and at some point we're going to have to come together as community to address the consequences of what is an unprecedented emergency. Speaker 1: 08:02 I've been speaking with Dan Eaton, an employment law attorney, and of course partner itself, sir, captain McMahon. Invitech Dan, thank you very much. Thank you, Maureen.