FAQs on Essential and Non-essential Workers
What does the Governor’s Statewide Stay-at-Home Order Mean?
On March 19, 2020, the Governor issued Executive Order N-33-20 (“Stay-at-Home Order”), which required all individuals statewide to stay at home or at their place of residence. The stay-at-home order exempted individuals working in critical industries. The California Department of Public Health on March 22 issued guidance, including a list of workers considered essential critical infrastructure workers (“essential workers”).
Can employees who are not essential workers file a retaliation claim if their employer terminates or otherwise retaliates against them because they refuse to go into work?
Employees who are not essential workers (“non-essential workers”) and who believe they were terminated or otherwise retaliated against for refusing to go into work may file a retaliation claim with the Labor Commissioner’s Office. Employers and employees are encouraged to carefully review the stay-at-home order, any applicable local shelter-in-place orders, and the latest health information to ensure compliance with all state and local orders. Whether an employee is a non-essential worker is fact-specific and may change in light of the evolving nature of the COVID-19 crisis.
Employers are encouraged to allow non-essential workers to telework to the full extent possible and to use all available paid and unpaid leave. Please see our COVID-19 FAQs on the use of paid sick leave and/or paid time off under a paid time off plan.
Can non-essential workers use paid sick leave if they cannot work based on the stay-at-home order?
Yes. Non-essential workers who cannot work from home can use any available paid sick leave for time off work under the “preventative care” provision in the law.
Am I entitled to use paid sick leave if I am an essential worker under the stay-at-home order?
Yes. Even if an employee is an essential worker, that employee can use paid sick leave if the employee or a family member is sick with any illness. The employee can also use any available paid sick leave for “preventative care,” which could include the following circumstances:
- The employee has been exposed or suspects exposure to COVID-19;
- The employee is 65 years of age or older;
- The employee has chronic medical conditions, such as heart disease, lung disease or diabetes; or
- The employee is caring for a family member who has been exposed or suspects exposure to COVID-19, is older than 65-years-of-age, has a chronic medical condition, or is caring for a child whose school has closed because of the COVID-19 crisis.
Federal law may also enable qualifying workers to take paid leave for reasons related to COVID-19. The U.S. Department of Labor has posted guidance for workers on paid leave under the federal Families First Coronavirus Response Act.
Should I still report to work if I am an essential worker who is 65 years old or older, immunocompromised or have chronic health conditions, and I don’t have any paid sick leave?
The California Department of Public Health has issued public health guidance urging individuals who are over 65, immunocompromised, or have certain serious chronic health conditions (such as heart disease, lung disease or diabetes) to stay at home. This guidance allows those who work in essential services, such as hospital and health care workers, pharmacists, peace officers, firefighters, staff at skilled nursing facilities and residential care facilities for the elderly, and other essential workers to continue to work. The guidance, however, does not state that essential workers must work.
Workers are encouraged to speak with their employers about work options that are consistent with public health guidance, the stay-at-home order, and any local public health orders. Such options may include telework or modified schedules. Employers may have a legal obligation to accommodate certain health conditions. The Department of Fair Employment and Housing has issued guidance regarding what employers must do to accommodate for employees with recognized disabilities.
If you are unable to agree with your employer on an alternative work arrangement and do not have paid sick leave, you may have other options. The California Family Rights Act provides eligible employees with unpaid, but job-protected leave, for serious health conditions. You may also be eligible for disability insurance if you have a qualifying illness or injury.
California law protects workers from retaliation when they choose not to work if doing so would violate (1) a local, state or federal law, or (2) a safety or health standard. Thus, as noted above, employees and employers are strongly encouraged to act consistently with all state and local public health orders.
Do I have any protections if I am treated as an independent contractor?
Workers may have been treated as independent contractors, even though they are employees under California law. More information about independent contractor misclassification, employment status, and Assembly Bill (AB) 5 is available on the Labor and Workforce Development Agency’s Employment Status Portal.
If you believe you have been misclassified and are an employee, you may:
- File a claim for unemployment benefits with the Employment Development Department, if have had your hours reduced, have been laid off, or have been terminated through no fault of your own
- File a claim for state disability insurance benefits with the Employment Development Department, if you are an essential worker but cannot work because of a physical or mental condition that prevents you from performing your regular or customary work
- File a complaint with the Labor Commissioner’s Office
What if I am an essential worker and my employer has not taken steps to ensure that my work environment is safe?
An employer may be subject to damages and penalties for treating an employee adversely or firing that employee for refusing to work in an unsafe situation or when the employee has complained of an unsafe work situation.
How do I file a claim or complaint with the Labor Commissioner’s Office?
If you suffer labor law violations, you have the right to file a claim or complaint with the Labor Commissioner’s Office, including:
- Filing an individual wage claim if you are not provided paid sick leave
- Filing a retaliation complaint if you experience retaliation due to:
- Refusing to go into work, despite being a Non-Essential Worker
- Attempting to take sick leave, or taking sick leave that should have been paid
- Complaining about workplace safety or health issues to your employer, Cal/OSHA, or other health and safety agencies
- Reporting a work-related illness or injury to your employer
- Refusing to perform work that would violate an occupational safety or health standard or order of the division or standards board, where the violation would create a real and apparent workplace hazard (Labor Code Sections 6310-12)
Finally, workers may file complaints with Cal/OSHA if they are working in an unsafe or unhealthy workplace.
Who do I contact if my employer is operating in violation of the Stay-at-Home Order or a local public health order?
Local law enforcement agencies, such as your local sheriff’s department, are handling compliance with the Stay-at-Home Order and local public health orders, including compliance with provisions regarding which establishments may remain open to the public and how such establishments may operate.
You may also contact the Labor Commissioner’s Licensing and Registration Unit if you work for an employer or business licensed by or registered with the Labor Commissioner and if that employer or business requires you to work in violation of the Stay-at-Home Order or a local public health order. Only certain employers and businesses are licensed by or registered with the Labor Commissioner. A license and registration search is available online.
April 10, 2020