Anaheim, CA asked in Employment Law for California

Q: Can my employer have a list of symptoms they can force you to go home for and then penalize you for the absence?

We have a point system for attendance, when you miss a day and don't have any sick time available you get a point. If they are forcing me to leave can they give me a point.

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2 Lawyer Answers
Neil Pedersen
Neil Pedersen
  • Westminster, CA
  • Licensed in California

A: Your question is just too general to give you any real helpful guidance.

Can an employer force you to go home if you have certain symptoms related to Covid-19? Absolutely. In fact CDC and OSHA guidance/regulations require an employer to do so to protect the rest of the workforce.

Can you be "punished" because you were absent? It depends on what you mean by being punished. Can you be required to stay home without pay? It depends on whether you have already used your FFCRA benefits, or whether you even qualify for FFCRA benefits, or whether you have used your California Healthy Workplace Families Act paid sick leave already. If those benefits are not available to you, it is lawful to send you home without pay.

If by punishment you are saying that you are being disciplined for excessive absences or for not making certain productivity goals, then far more would need to be known about the particular situation. For instance, if you have been out recklessly exposing your self to the virus by going to large gatherings or otherwise acting in a way that demonstrates a lack of concern (i.e., refusing to wear a mask, etc.) I think and employer may be able to legitimately subject you to discipline. On the other hand, punishing you for coming down with the virus might be a violation of the Fair Employment and Housing Act. Again, far more information would need to be understood.

Good luck to you.

Robert Philip Cogan agrees with this answer

1 user found this answer helpful

Maurice Mandel II
Maurice Mandel II
  • Newport Beach, CA
  • Licensed in California

A: No, your employer cannot use the absence system to "punish" you because the employer believes you are too sick to be at work. Your absence is protected by the Cal. Family Rights Act and the FEHA- no physical disability discrimination laws. You could also be protected under CalOSHA, if you are sent home for being a workplace hazard. There are specific prohibitions against just this type of employer bad behavior in the laws, because they have been doing this for years and years. You need to contact an attorney to represent you and you should be filing a complaint with the DFEH, online. But have the employer assist you first.

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