Employees Cannot be Required to Use Paid Sick Leave Due to COVID-19

One of the most frequent questions asked by employees during the pandemic has been what to do if they feel unsafe returning to work, or if they are under a quarantine order due to exposure to Coronavirus and therefore cannot return to work.  

The California Department of Industrial Relations has published an FAQ on COVID-19.  The department has clarified that employees can use paid sick leave for “preventative care.”  While there has been no clear cut legal decision on this, we understand “preventative care” to cover the above described situations.  Therefore, if one does not want to or cannot return to work due to fear of getting sick or due to a mandated quarantine, they can use: first, their paid sick leave balance, and then, their vacation pay/PTO balance to cover the time off.  

It is also, however, important to note that an employer cannot require an employee to use their paid sick leave for the purposes of COVID-19 “preventative care.”  Therefore, we assume that an employee must be given the option in these situations of taking unpaid time off while preserving their sick bank for later use.  

If your employer has either not allowed you to remain off work and use your sick bank or PTO in these preventative care situations – and has instead mandated a return to work – you may have a case for violation of the laws.  Similarly, if your employer has required you to use your accrued sick days instead of taking unpaid time off due to COVID-19, you may have a case.  We would be interested in speaking with you if either of these situations have occurred.

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