Unpaid Leave can Lead to a Lawsuit – Coronavirus Update

unpaid leaveUnpaid leave due to the COVID-19 pandemic is being forced on more Americans than at any other time in our country’s history. As of April 1 of this year, Public Law 116-127, otherwise known as the Families First Coronavirus Response Act, gives workers the right to sue their employers in the event proper leave is not provided. Businesses employing between 50-500 workers must comply with the new law.

Consider These Unpaid Leave Circumstances

Many individuals across California and the United States are not showing up for work for reasons beyond their control:

  • There is a state or local quarantine;
  • They have received notification that they should self-quarantine due to a possible exposure or symptoms of the disease;
  • They have experienced disease symptoms and are seeking medical testing or treatment.

Under these circumstances, workers are entitled to the greater of these three wages:

  • Your regular pay;
  • The federal minimum wage;
  • The state minimum wage.

You can top out at as much as $511 per day during the course of your sick leave.

Furthermore, you may be entitled to two thirds of your normal pay — up to $200 daily — if you are unable to work for the following reasons:

  • You are caring for an individual who must be isolated or quarantined;
  • You are caring for a child who is unable to attend schools due to local closures;
  • You are in another situation similar to these that prevents you from going to work.

How it Works

Sick leave and expanded family and medical leave is calculated as follows:

Part time workers are entitled to the average earnings in a two-week time frame. The average going back six months may be used if an employee’s schedule varies significantly from week to week. These workers are entitled to paid sick leave for two weeks, and may extend the payment period for as many as 10 more weeks under the expanded family and medical leave provisions. In the event employees generally put in overtime hours, those too must be compensated under the Emergency Family and Medical Leave Expansion Act. Under the Emergency Paid Sick Leave Act, however, only hours up to 80 in a two-week period are to be paid. [Read more…]

Is Missing Work to Care for A Grandparent Covered by the Family Medical Leave Act?

Family Medical Leave ActCan you use medical leave to take care of your grandmother? Imagine your grandmother has had hip replacement surgery, and is going to require extensive care for the next several weeks. You approach your boss for some time off and are denied. But what about the Family Medical Leave Act (FMLA), you challenge. Does it not provide time off to care for family members? If you find yourself in a confrontation with your employer over the provisions of FMLA, an employment law attorney may be able to assist.

Family Medical Leave Act (FMLA) Provisions

FMLA provides that eligible employees are allowed to take up to 12 weeks of unpaid, job-protected time off with continued group health insurance coverage in certain circumstances.  The part of the law relevant to this situation is pretty explicit: An employee may take the time off of work to care for a spouse, child or parent with a serious health issue. Grandparents are not mentioned. It looks pretty cut-and-dried. Or is it?

Family Medical Leave Act and Parental Relationships

In fact, the FMLA does have some wiggle room when it comes to defining family relationships.   The law actually provides consideration to those who are able to demonstrate a factual, or in loco parentis relationship. This refers to anyone who has essentially served in a parenting role toward the employee. Now, the law does not specify exactly how that parenting role presents, but some factors might include:

  • Providing food, shelter, and clothing;
  • Addressing medical needs and having health insurance;
  • Providing transportation to and from school.

If an employee can establish that his of her grandparent raised him or her, or, at a minimum, met the above criteria, he or she may have a case for in loco parentis status. If, indeed, the grandparent discharged obligations as in a parent-child relationship when the employee was a minor child, FMLA may cover time off of work now for the employee to care for his or her grandparent.

Of note, the in loco parentis interpretation goes even further. The individual who took on the parenting role does not even have to have a legal or biological relationship to the employee.  Simply showing that that person provided financial support and performed duties typically associated with a parent is generally enough.

Employer Rights

Employers are entitled to documentation of any claims of in loco parentis relationships, of course, just as they may seek documentation showing the need for FMLA in other allowed circumstances. That documentation, however, can simply be the employee’s assertion of the relationship with minimal details. [Read more…]


The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.