A COVID-Based mostly Retaliation? – SF Weekly

My child’s daycare center had to be closed for a month due to exposure to COVID-19. I took time off to take care of my four year old. When I got back to work, my co-workers treated me differently. You know what happened at my child’s day care center. When I walk into a room I see them whispering to each other and sometimes they leave the room entirely as if to avoid me. A member of staff asked me specifically if I had the “kung flu”. I am an Asian American and was offended by this comment. Another employee said it was not fair for me to be allowed to take a “month vacation.” I verbally complained to my manager about the racist remark and the different treatment by my staff and she assured me that she would take care of it.

A few weeks later, my manager informed me that I was being transferred to the cemetery shift. My manager knows I can’t work this shift because I have a young child. I told her this was not fair and that I thought I would be turned away because of a COVID-19 release for my child’s daycare center being closed and / or complaints about the racist comments my staff made. She denied it, saying it was a business need and that my options would shift to the graveyard shift or stop. I think it makes me stand out. I have been with this company for two years and always had a good relationship with my manager prior to my complaint. I do not know what to do. What are my rights

– Elena, Dolores Heights

Dear Elena,

I am so sorry that this is happening to you in the middle of what is already a difficult year. The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment based on race, national origin and disability (including categories) in the workplace. The FEHA applies to public and private employers, labor organizations and employment agencies with five or more employees. Employees also have the right to be protected from retaliation if they file a complaint or oppose any practice prohibited by the FEHA. Retaliation includes any adverse employment action taken in response to an employee’s complaint, including dismissal, demotion, wage cut, transfer of jobs, and negative performance evaluation. In other words, if you report discrimination or harassment based on race, national origin or disability in the workplace, your employer cannot punish you or treat you differently. Employers who violate the FEHA’s anti-discrimination, harassment and retaliation regulations may be held liable for damages including reimbursement, lost benefits, emotional distress, punitive damages, legal fees and costs, etc.

Your complaint to your manager about the “kung flu” comment your employee made and treated differently by employees on leave of absence will be considered a Protected Activity under the FEHA as it is likely based on your race or national origin or as a perceived or associative disability. (COVID-19 can be a disability depending on its severity.) Your supervisor forcing you to move to the cemetery shift is viewed as an adverse employment measure under the FEHA. The law requires evidence of a connection between the two things. The fact that this happened just two weeks after you complained is evidence that this was related to the protected activity.

Another source of protection can be the Family First Coronavirus Response Act (FFCRA). The FFCRA, which expanded the Family Medical Leave Act (FMLA), covers vacation and loss of income when an employee has to care for children due to school closings or childcare and other COVID-19-related vacation. Employers with 500 or fewer employees must grant sheltered leave to employees who are due to the need to care for the employee’s child (under 18 years of age), when the child’s primary or secondary school or the childcare location has been closed or the childcare provider is due of the COVID-19 emergency not available. This applies to employees who have been with the employer for at least 30 calendar days. This means that employers are prohibited from dismissing, disciplining, or otherwise revenging employees who are on leave under the FFCRA. Employers who violate the FFCRA’s extended FMLA provision may be held liable for damages, including back payment, lost benefits, emotional distress, attorney fees and expenses, etc.

Assuming your employment has 500 or fewer employees, your leave of absence to care for your minor child while the daycare is closed will be protected by the FFCRA, and retaliation against you with a cemetery shift is against the FFCRA. We recommend that you contact an employment lawyer to protect your rights as best as possible and to ensure that you do not miss any registration deadlines.

Christopher B. Dolan is the owner of the Dolan, PC law firm. Mari Bandoma Collado is a Senior Associate Attorney based in our Oakland office. Email questions and topics for future articles to: [email protected].

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