Federal and California Laws Applicable to the COVID-19 Pandemic

Federal and California Laws Applicable to the COVID-19 Pandemic

This document provides an overview of the minimum leave requirements that California employers must provide employees applicable to the COVID-19 Pandemic, taking into account federal and state law, including the recently-passed federal HR 6201, the Families First Coronavirus Response Act. Naturally, your CBA may provide more generous benefits, in which case those are enforceable through the grievance and arbitration process. However, if the benefits described below are more generous than the CBA, then the employer normally must provide them. Some of the leaves described below provide job protection, meaning you cannot be discharged, charged absence points or events, or otherwise retaliated against for taking the leave. Other types of leaves described below provide paid benefits but no job protection at all. For this last type, you would take the benefits but would need another type of protected leave to ensure job protection. Finally, some types of leave provide both job protection and benefits. We will say below which type of leave this is: “This is unpaid but protected leave,” or “This is paid leave only, with no job protection,” or “This leave is both paid and protected.” We also address below the combined state and federal unemployment benefits available for our members who are laid off or let go during this crisis, including the additional $600 per week available under the new federal CARES Act.

PAID LEAVE

1. Under the new federal law, many employees are now entitled to up to 2 weeks of paid sick leave for COVID-19-related medical care. This leave is both paid and protected.

• What employers are required to provide paid leave for COVID-19-related medical care?
  • Private employers with fewer than 500 employees must provide paid COVID-19 leave.[2] There is no minimum number of employees necessary.
  • Government employers.[3]
  • BUT any health care provider or emergency responder is excluded from this leave. This exclusion prevents anyone working at a hospital, doctor’s office, pharmacy, medical laboratory, nursing home and other such facilities from being guaranteed this leave.[4]
  • Small employers with fewer than 50 employees can refuse an employee’s request for COVID-19 leave if the employee’s absence would cause the employer’s expenses to exceed revenue.[5] But the employer must have evidence that this is true for each employee that it denies leave to.
  • What circumstances qualify employees for this paid sick leave?[6]
    • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
      • However, an employer is not obligated to provide COVID-19 paid sick leave if the employer no longer has work for the employee as a result of the quarantine or isolation order. This is a substantial limitation on this right because many employers will be shut down by the same orders the prevent their employees from working.[7]
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
• The employee is experiencing symptoms of COVID-19 and seeking diagnosis;
• The employee is caring for an individual subject to a quarantine order or self-quarantine by a health care provider;
• The employee is caring for a child if the school has been closed or the child care provider is unavailable due to COVID-19 precautions; or
• Other similar conditions if specified by the Secretary of HHS.
• How many hours of paid leave does an employee get?
  • Full-time employees who are eligible for this COVID-19 leave may take up to 80 hours.[8]
  • Part-time employees may take a number of hours of paid leave equal to their average hours over a 2-week period.[9] For example, an employee who works 20 hours per week would be entitled to 40 hours of paid sick leave for a COVID-19-related reason.
  • What rate of pay must the employee receive if they qualify for this COVID-19-related leave? It depends on the reason the employee takes the leave:
    • If the employee is caring for him or herself, the rate of pay is the employee’s regular rate up to a maximum of $511 per day.[10]
    • If the employee is caring for someone else, the rate of pay is at least 2/3 of the employee’s regular rate of pay, but no more than $200 per day if 2/3 of their regular rate is above that.[11]
    • Note that an employer may pay a more generous benefit, but they are not required to by law.
    • Can probationary employees qualify for COVID-19 leave? Yes. There is no minimum waiting period before accessing this paid leave[12]—a full-time employee hired yesterday may take all 80 hours if necessary.
    • Are there any other important details of this COVID-19 leave?
      • The employer may not ask the employee to search for a replacement as a condition of accessing this paid leave.[13]
      • The employee must be allowed to use their COVID-19 leave before other paid leave, if they qualify for it.[14]
      • This COVID-19 paid leave will expire at the end of 2020.[15]

2. Under the new federal law, many employees are now entitled to paid leave to care for children if their schools or daycares are shut down due to COVID-19 measures. This leave is both paid and protected.

• What employers are required to provide paid COVID-19 family leave? All private employers with fewer than 500 employees.[16]
  • But the same limitations on health care providers, emergency responders, and employees of small businesses that apply to COVID-19 paid sick leave apply to this family leave as well (See #1).
  • What employees are entitled to use COVID-19 family leave? All employees who have worked at least 30 days for their employer.[17]
  • What circumstances qualify an employee for paid COVID-19 family leave? An employee who cannot work or telework because they need to care for a child under 18 years old whose school or day care is closed because of COVID-19 pandemic.[18]
  • How much will the employee be paid during COVID-19 family leave?
    • No pay is guaranteed for the first 10 days, although the employee is allowed to use accrued sick or vacation pay, if available.[19]
    • After 10 days, the employer must provide at least 2/3 of the employee’s regular pay, up to a maximum of $200 per day.
    • The guaranteed benefit maxes out at a total of $10,000 per employee.[20] That’s a total of 50 days of paid leave for an employee receiving the maximum of $200 per day.
    • How long does COVID-19 parental care leave last? The employer is only required to provide a total of 12 weeks of leave. This leave, although paid, counts as an employee’s FMLA/CFRA leave.[21]
    • Must an employee notify the employer in advance? Yes, if the need for COVID-19 family leave is foreseeable.[22]

3. California Requires Employers to Provide up to 3 Days of Paid Sick Leave.[23] This leave is both paid and protected.

• California law requires all employers to provide 3 days of paid sick leave per year.
• Eligibility: An employee must have worked at least 30 days within 1 year to be eligible for paid sick leave.[24]
• When can an eligible employee start taking paid sick days? 90 days after the start of employment, and after that as soon as they accrue.[25]
• How does sick time accrue? Accrual should be equal to one hour of paid sick leave per 30 hours of work. Employer may use a different method of calculation as long as it works out to provide 3 days (24 hours) accrual by the 120th calendar day of employment.[26]
• The minimum sick leave requirements can be waived in a CBA if the following conditions are met:
  • 1. CBA provides for wages, hours of work, working conditions;
  • 2. CBA provides paid sick days, or paid time off that employees can use as sick days if desired;
  • 3. CBA provides for final and binding arbitration of grievances regarding sick days;
  • 4. CBA provides overtime premiums;
  • 5. The employee’s regular wage rate is at least 30% more than the state minimum wage.[27]
  • *Important: CBA exemption is determined individually for each employee. Please check your CBA to ensure that each employee meets the 5 conditions outlined above. If not, they must receive at least 3 paid sick days per year.

3A. Some Cities also require paid sick leave. These are just two examples.

1. City of Los Angeles

                                                              i.      Employers in the City of Los Angeles are required to provide employees with 48 hours of paid sick leave per year.[28] A full-time hotel worker working for a hotel with 150 or more guestrooms gets at least 96 hours per year; a part-time hotel worker gets a pro-rated share of time off.[29]

1. City of Santa Monica

                                                              i.      Employers in the City of Santa Monica are required to provide employees with 40 hours per year for small employers (25 or fewer employees) and 72 hours per year for larger employers (more than 26 employees).[30]

                                                            ii.      Exemptions: Employers who are government agencies, including federal agencies, state agencies, city, counties, school districts, and other public entities.[31]

4. California employees may take accrued sick leave to attend to the illness of a child, parent, spouse, or domestic partner.[32] This leave is both paid and protected.

• How much can the employee take? Employer must permit the employee to take at least half of the sick leave accrued in a calendar year.
• Is employer consent required? No.
• Is medical documentation required? No. Medical certification of the illness is NOT necessary unless the employer’s regular sick leave policy requires certification of the employee’s illness.
• Does this run concurrently with the FMLA/CFRA? Yes. No additional time is provided.[33] 

5. A California employer is required to give an employee leave for the employee’s child’s school or day care’s closure. This leave is protected, but may be paid or unpaid.

• An employee who works for a California employer with 25 or more employees (at the same location), and is either a parent, guardian, stepparent, foster parent, or grandparent of a child enrolled in a K-12 school or a licensed day care facility may take up to up to 40 hours off of work each year to care for a child due to a school or day care closure.[34]
• Can I take all 40 hours off at once? Yes, if the employee is taking the protected leave to care for a (K-12) child whose school or day care closed because of COVID-19 and the employer’s policies allows for unpaid leave.[36]
  • Does the employee need to provide notice? Yes, an employee must provide the employer with “reasonable notice” of their planned absence.
  • Important: Leave under the Family-School Partnership Act (FSPA) cannot be counted against an employee’s 12-weeks of FMLA/CFRA unpaid leave.

• Can the employer require the employee to use accrued sick leave, vacation leave, personal leave, or other compensatory time off? An employer cannot require an employee to use their accrued sick leave, although an employee can elect to do so. An employer can, however, require an employee to use accrued vacation, personal leave, or other compensatory time off. An employee may also take unpaid leave if such leave is provided by the employer. [35]

5A. Both Governor Gavin Newsom and the Department of Industrial Relations have suggested in published Q&As that employees could take sick leave (that is, use the California Kin Care Law) to care for a well child that is home due to a school closure as a form of preventative care.

• See https://www.cde.ca.gov/ls/he/hn/documents/caresupervisionguidance.docx.
• See also https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm (last sentence of question 4)
• Please note that this is an unconventional interpretation of sick leave law but state authorities appear willing to permit this use of sick leave.

UNPAID LEAVE JOB PROTECTION

The Family & Medical Leave Act (FMLA), California Family Rights Act (CFRA) and New Parent Leave Act (NPLA) provide 12 weeks of job-protected leave for eligible employees. Employees of employers with 50 or more employees are covered under the CFRA. Employees of employers with 20 to 49 employees are covered by the NPLA.

6. Family and Medical Leave Act (FMLA) / California Family Rights Act (CFRA)[37]

• This is unpaid but protected leave.
• California employees are entitled to 12 weeks of protected unpaid leave with all health benefits to:
  • bond with a new child (including adoptive and foster children);
  • care for a family member (spouse, registered domestic partner, minor child, minor child of registered domestic partner, or parent) with a serious health condition;
  • care for themselves if they are unable to work because of their own serious health condition; or
  • to be with or care for a spouse, parent, minor child or next of kin who serves or served in the military.[38]
  • What is a serious health condition?[39]
    • Incapacity related to inpatient care in a hospital (overnight stay), hospice, or residential medical care facility; or
    • Incapacity for more than three consecutive days that requires continuing treatment or continuing supervision by a health care provider; or
    • Incapacity or treatment due to a serious chronic disorder (e.g., asthma, diabetes, epilepsy, etc); or
    • Long-term or permanent incapacity due to condition for which treatment may be ineffective (e.g., Alzheimer's, stroke, terminal illness, etc.); or
    • Incapacity or medical care due to pregnancy (only under the FMLA); or
    • Multiple treatments to prevent incapacity (e.g. chemotherapy where employee is not incapacitated yet).
    • Important:
      • Under the CFRA, employee’s family member does not need to be incapacitated, but only have a serious health condition in which they “require assistance” and the employee’s care would be beneficial or desirable.
      • Disability on account of pregnancy, childbirth, or related medical conditions is not covered by the CFRA, only the FMLA. Instead, California provides stronger paid protections for employees who are disabled due to pregnancy, childbirth, or related medical conditions. (See #10)
      • Can an employer require you to obtain a health care provider’s certification? Yes, but they must give you at least 15 days to submit it.[40]
      • Does the employee need to provide notice? Yes, reasonable advance notice should be given if the need for CFRA leave is foreseeable.[41]
      • What employers are required to provide protected family leave? All employers with 50 or more employees worldwide, including California state and local governments.[42]
      • How long must an employee have worked for the employer to be eligible for protected family leave? The employee must have worked for the employer for at least 12 months (which need not be consecutive) AND worked 1,250 hours during the 12 months preceding the date the CFRA leave begins.[43]
      • Does grievance process and other “union time” count towards the 1,250 hour requirement? Only if the employer pays for it.
      • Can an employer require an employee to take accrued sick leave or vacation leave? Yes, but an employer may NOT require an employee to use their sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and employee.[44] Check your collective bargaining agreement first.[45]
      • Can an employer refuse to allow an employee to take CFRA leave or take adverse actions against me for taking CFRA leave? No, an employer cannot interfere with, restrain, or deny an employee from taking CFRA leave, nor may the employer refuse to hire, or discharge, fine, suspend, expel, or discriminate against an employee for taking CFRA leave.[46]

7. Americans with Disabilities Act (federal) and Fair Employment and Housing Act (state)

• Employers are required to provide reasonable accommodation to employees with disabilities.
• The physical impairment caused by COVID-19 may qualify as a disability under state or federal disability law.
• An employer may be required to provide additional unpaid leave, leave, beyond that provided for by other sources, as a reasonable accommodation. This may include time for treatment or time spent in quarantine as a result of contracting COVID-19.
• Each case will depend heavily on the specific facts.

8. New Parent Leave Act (NPLA)[47]

• This is unpaid but protected leave.
• Employees that are new parents have a right to take up 12 workweeks to bond with their new child within one year of their child's birth, adoption, or foster care placement.
• Eligibility requirements:
  • Employee must have more than 12 months of service with their employer; and
  • Employee must have worked at least 1,250 hours in the 12-month period before the date they want to begin their leave; and
  • Employer must have 20 or more employees within a 75-mile radius, including state and city employers.
  • Can the employee use accrued sick time, vacation time, or other time off? Yes, an employee is entitled to use accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during the period of parental leave.[48]

STATE’S MONETARY BENEFIT OPTIONS

After the federal law’s 2 weeks of paid sick leave for COVID-19-related medical care OR $10,000 of paid family leave is exhausted, a California employee has four options to get monetary benefits. If eligible, they can file claims for Unemployment Insurance (UI) benefits, Disability Insurance (DI) benefits, Paid Family Leave (PFL) benefits, and/or Workers’ Compensation (WC) benefits. These are all monetary benefits and do not provide job protections. The Family Medical Leave Act (FMLA), as amended by the Families First Coronavirus Response Act (see #1 & 2) and the California Family Rights Act (CFRA) (see #6) provide unpaid leave job protection for 12 weeks, running concurrently with the monetary benefits outlined below.

9. Unemployment Insurance (UI) Benefits

• This obviously provides no job protection; it provides only some income after temporary or permanent job loss or reduction of hours, including layoffs, reduced shifts, or other cut-backs.
• The federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act has expanded eligibility for unemployment insurance in response to the COVID-19 pandemic to cover individuals who are out of work because of the following circumstances:[49]
  • Individuals who have been diagnosed with COVID-19 or have the symptoms of COVID-19 and are seeking a diagnosis;
  • Individuals who share a household with someone who has been diagnosed with COVID-19;
  • Individuals who are providing care for a family member or household member who has been diagnosed with COVID-19;
  • Individuals who have primary caregiving responsibility for a child or household member who is unable to attend school or another caregiving facility that is closed due to COVID-19;
  • Individuals who cannot reach their place of work because of a quarantine imposed as a result of the COVID-19 public health emergency;
  • Individuals who are unable to reach their place of employment because the individual has been advised by a health care provider to self-quarantine;
  • Individuals who were scheduled to begin employment but who has lost the job or cannot reach the job as a direct result of the COVID-19 emergency;
  • Individuals who have become the breadwinner or major support for a household because the head of household has died as a result of COVID-19;
  • Individuals whose place of employment is closed as a direct result of the COVID-19 emergency;
  • Individuals who meet any additional criteria established by the Secretary of Labor.
  • Anyone who is able to telework with pay is excluded from this expanded unemployment coverage.[50]
  • Individuals who are able to work may still be required to demonstrate that they are actively seeking work, although the state is required to provide flexibility in meeting this requirement because of COVID-19 illness, quarantine, or movement restrictions.[51]
  • How long do unemployment benefits continue? For 39 weeks, through December 31, 2020.[52]
    • There may be a delay before all states accept the new COVID-19 related justifications for obtaining unemployment benefits. This is a new program that requires states to adjust their claims procedures slightly.

• The CARES Act provides a $600 per week enhancement to existing state law unemployment benefits, but only through July 31, 2020.

• Important:

• The governor has waived the usual one-week unpaid waiting period;[53] and
• Employees who are expected to return to work with their employer within a few weeks are not required to actively seek work each week.[54]

10. Disability Insurance (DI) Benefits

• This is paid leave only, with no job protection.
• An employee who is unable to work because they are ill with COVID-19 or were exposed to COVID-19 (certified by a medical professional) that is not work-related, OR disabled resulting from any other illness or injury, including pregnancy, childbirth, or related medical condition, may be eligible for Disability Insurance (DI) benefits.[55]
• What are the eligibility requirements?[56]
  • Employee must be unable to do their regular or customary work for at least eight days;
  • Employee must be employed or actively looking for work at the time their illness with, or exposure to, COVID-19 or other disability, including pregnancy, begins;
  • Employee must have lost wages because of their illness/disability;
  • Employee must have earned at least $300 from which State Disability Insurance (SDI) deductions were withheld during the preceding 5 quarters;
  • Employee must be under the care and treatment of a licensed physician/practitioner within the first 8 days of their illness/disability and remain under care and treatment to continue receiving benefits; and
  • The employee will need to provide medical documentation and a medical certification from their physician.
  • How much and for long can an employee expect to receive DI benefits? Disability benefits cover 60 to 70% of wages (depending on income) and range from $50-$1,300 a week[57] for up to 52 weeks at most.[58]
  • Important:
    • The governor has waived the usual one-week unpaid waiting period.[59]
    • Citizenship and immigration status does not affect eligibility[60]
    • If an employee’s family member is ill or exposed to COVID-19, the employee should file for Paid Family Leave (PFL) benefits instead. (See #11).
    • If an employee became ill with COVID-19 at work (i.e. healthcare workers), they should file a Workers’ Compensation claim instead. (See #12).

11. Paid Family Leave (PFL) Benefits

• This is paid leave only, with no job protection.
• An employee who is unable to work because they are caring for an ill or quarantined family member with COVID-19 (certified by a medical professional) may be eligible for Paid Family Leave (PFL) benefits.[61]
• California provides employees up to 6 weeks,[62] and starting July 1, 2020, 8 weeks,[63] in a 12-month period, of partial wage replacement while employees take time off work for the following circumstances:
  • Employee must be unable to do their regular or customary work due to the need to provide care for a seriously ill family member or to bond with a new child;
  • Employee must be employed or actively looking for work at the time their family leave begins;
  • Employee must have lost wages because they were caring for a seriously ill family member or bonding with a new child;
  • Employee must have earned at least $300 from which State Disability Insurance (SDI) deductions were withheld during the preceding 5 quarters;
  • Employee needs to complete and submit their claim form no earlier than the first day of family leave but no later than 41 days after their family leave begins;
  • The employee will need to provide a medical certificate, completed by the seriously ill family member’s physician/practitioner.
  • How much can an employee expect to receive? PFL benefits are approximately 60 to 70% of an employee’s wages and range from $50 to $1,300 a week.[66]
  • Important:
    • Citizenship and immigration status does not affect eligibility.[67]
    • Employees in San Francisco - The San Francisco Paid Parental Leave Ordinance requires employers to pay “supplemental compensation” for the full period that a covered employee receives PFL to bond with a child.[68]

• To care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.
• To bond with the employee’s new minor child or the new minor child of the employee’s spouse or registered domestic partner.
• To bond with a minor child in connection with the adoption or foster care placement of the child with the employee or the employee’s spouse or registered domestic partner.[64]
• What are the eligibility requirements?[65]

12. Workers’ Compensation (WC) benefits

• Workers’ Compensation provides full or partial wage replacement and sometimes provides job protection; a workers compensation attorney should be consulted in each case.
• If an employee is unable to do their usual job because they were exposed to and contracted COVID-19 during the regular course of their work, they may be eligible for Workers’ Compensation (WC) benefits.[69]
• What benefits are included? Benefits include temporary disability (TD) payments, which begin when your doctor says you can’t do your usual work for more than three days or you are hospitalized overnight. You may be entitled to TD for up to 104 weeks.[70]TD stops when either you return to work, your doctor releases you for work, or your doctor says your illness has improved as much as it’s going to.
• How much can an employee expect to receive? TD generally pays two-thirds of the gross wages you lose while you are recovering from a work-related illness or injury, up to maximum weekly amount set by law. In addition, eligible employees are entitled to medical treatment and additional payments if a doctor determines you suffered a permanent disability because of the illness.[71]

DANGEROUS WORKING CONDITIONS

13. Workers have the right to refuse to work in dangerous conditions but it isn’t clear if COVID-19 qualifies in all cases.

• When does an employee have a protected right to refuse to work in a dangerous situation?
  • Every employee has a protected right to refuse a task at work that would subject him or herself to serious injury or death arising from a hazardous condition at the workplace, as long as 3 conditions are met:[72]
    • A reasonable person, under the circumstances, would conclude that there is a real danger of death or serious injury; and
    • There is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular enforcement channels; and
    • The employee sought for the employer to correct the dangerous condition, if possible.
• Every employee has the right to walk off the job if they believe in good faith that they are being subjected to an abnormally dangerous condition.[73] This is true even if you have a CBA with a no-strike provision.
• Even workers without a union are protected if they walk off the job together to protest an unsafe working condition.[74]
• Does the COVID-19 pandemic qualify as a dangerous enough condition that employees can refuse to work without reprisal from their employers?
  • No federal agencies or courts have made a determination yet whether the COVID-19 pandemic is sufficiently dangerous that employees can refuse to work.
  • In all likelihood, the answer will be different in different workplaces. For example, an employee whose coworker has tested positive has a stronger argument that going to work would be abnormally dangerous than an employee whose coworkers are all free of symptoms.
  • Consult with your union if you are thinking of refusing to work on account of the COVID-19 pandemic.

PROTECTIONS FOR PREGNANT EMPLOYEES

Pregnant employees may take 4 months of protected unpaid leave under the Pregnancy Disability Leave Law (PDLL) during the pregnancy (see subsection A below), and then 3 months (12 weeks) of protected unpaid leave after the baby is born for baby bonding under the California Family Rights Act (CFRA) if the employer has more than 50 employees, (See #6), or the New Parent Leave Act (NPLA) if the employer has 20 to 49 employees (See #8). To get some form of monetary benefit, a pregnant employee can apply for state Disability Insurance (DI) benefits (See #10) or Paid Family Leave (PFL) benefits (See #11).

14. Pregnancy Disability Leave (PDL)[75]

• This is unpaid but protected leave.
• California employees have a right of up to 4 months of unpaid leave when they are disabled by pregnancy, childbirth, or a related medical condition.
• What employers are required to provide PDL? All employers with 5 or more employees.[76]
• Are there any minimum requirements of hours or years of work? No, there are no minimum requirements for number of hours or years worked to be eligible.[77]
• Will the employee be paid when they take PDL?

                                                              i.      The employer is not required to pay the employee during this leave, unless the CBA or the employer’s own policy requires it, or the employer pays for other temporary disability leaves for similarly situated employees.[78]

                                                            ii.      An employee can also be paid if they use paid vacation or paid time off during PDL.

                                                          iii.      An employee may also be eligible to apply for state Disability Insurance (DI) benefits (See #10) or Paid Family Leave (PFL) benefits (See #11).

• What are examples of pregnancy disability? An employee can take PDL for severe morning sickness, prenatal or postnatal care, need for bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, lactation conditions such as mastitis, loss or end of pregnancy, and recovery from loss or end of pregnancy.[79]
• Does PDL run concurrently with the FMLA/CFRA/NPLA? No. The 4 months of PDL are in addition to the 3 months provided by the CFRA or NPLA. (Remember, CFRA and NPLA does not cover pregnancy, but does cover baby bonding).
• How much total time off can a pregnant employee take? In total, an employee can take up to 7 months of leave. The first 4 months under the PDLL, and last 3 months for baby bonding after birth under the CFRA or NPLA (See #6 & 8).
• Can an employer require a pregnant employee to use accrued sick leave, vacation leave or other accrued time off during PDL? An employer can require an employee to, or the employee may elect to use, any accrued sick leave during any unpaid portion of their pregnancy disability leave. However, an employer cannot require use of vacation time. Only an employee may elect, at her option, to use any vacation time or other accrued time off.[80]
• Will the employee on PDL continue to be covered by the employer’s group health coverage? Yes, an employer is required to pay for the continuation of an employee’s group health coverage (if initially covered) for all four months the employee is on PDL.[81]
• Does the employee need to give notice to her employer? If possible, an employee should give their employer 30 days’ notice. The employer must give a written guarantee that the employee will be reinstated to their same job after PDL, if they request it.[82]
• Is a medical certification required? The employer may require that the employee provide a written medical certification from the employee’s health care provider substantiating the employee’s need for leave.[83]

15. Pregnant employees are protected from discrimination or punishment for taking PDL or needing reasonable accommodations.

• It is illegal for employers to fire, refuse to hire, bar, harass, discharge, or otherwise discriminate against someone because of pregnancy, childbirth, or a related condition.[84] However, PDL does not protect pregnant employees from employment actions not related to their pregnancy, such as layoffs.[85]

16. Pregnant employees also have the right to reasonable accommodations.

• Accommodations are changes to the work environment that allow employees to perform their job. Whether a pregnant employee is entitled to any particular accommodation will depend upon the circumstances of their pregnancy-related disability and the workplace.
• What are some examples of accommodations?

                                                              i.      Modifying work duties to be less strenuous;[86]

                                                            ii.      Modifying work schedules to permit earlier or later hours, or to permit more frequent breaks (e.g. to use the restroom);[87]

                                                          iii.      Use of a stool or chair while performing work duties;[88] and

                                                          iv.      Temporary transfer to a less strenuous or hazardous job;[89]

                                                            v.      Longer or more frequent breaks;[90]

                                                          vi.      Private lactation accommodations;[91]

                                                        vii.      Pregnancy Disability Leave (PDL);[92]

                                                      viii.      Additional leave as a reasonable accommodation at the end of PDL.

17. Can a pregnant employee choose not to report to work out of fear of COVID-19?

• Pregnant employees have the same rights as all other employees to refuse to work in abnormally dangerous circumstances. (See #13).
• The American College of Obstetricians and Gynecologists has determined that pregnant women are an at-risk population for COVID-19.[93]
• Consequently, we believe pregnant employees should be accommodated to minimize their risk of exposure to COVID-19.