As a result of the coronavirus pandemic, California employers are being forced to make challenging workforce decisions to deal with the significant economic impact and uncertainty we are currently facing. Millions of people across the state are finding themselves without a job, either temporarily or permanently. And with this significant change in their work status come questions. If you believe that you have been wrongfully terminated because of COVID-19, you may have a legal claim.
Generally speaking, a furlough refers to a set period of time off work and without pay initiated by the employer and intended to be for a temporary or limited duration. In many instances, the employee remains on payroll and eligible for benefits, including health insurance coverage. Furloughs should be communicated to employees in writing, before the start of the furlough period. Any work performed must be paid.
If you are temporarily furloughed due to this pandemic is your employer required to payout vacation time?
This answer to this depends on your specific situation. Your employer may have a written policy requiring you to use your vacation and sick days before taking paid leave, or it may allow you to choose whether or not to use available paid time off. The US Department of Labor has indicated that an employer may not require concurrent use of other forms of leave with the two weeks of paid sick leave available under the Emergency Paid Sick Leave Act (EPSLA). Additionally, the regulations clarify that employers may not require an employee to use any form of previously available paid or unpaid leave “before” or “prior to” taking sick leave under the EPSLA.
There is a possibility that the courts will see your temporary furlough as a termination of employment, thereby triggering your employer to pay you any outstanding payments. California law requires that all accrued vacation be paid at the time of “termination”. The California Division of Labor Standards Enforcement (“DLSE”) has previously taken the position that a temporary lay-off will constitute a termination except where the lay-off does not exceed 10 days and there is a definite date given for return to work within the normal pay period. In other words, if you have been furloughed and not paid your earned vacation days, you may have a legal claim.
For a free, no obligation consultation, contact the Law Offices of Eric A. Boyajian today.