This week’s question comes from Adam in Mission Bay, who writes:
Q: “Chris, my husband Jeff was hit by a car while crossing the street near our condo. Jeff was in the crosswalk and suffered a fractured leg and a concussion. I did not have any paid time off at work. I took off a week anyway to care for Jeff after he was released from the hospital.
My manager was upset with me for not reporting to work. He said he couldn’t get coverage for my shifts and fired me the day I returned to the job. I had emailed my manager that I would not be coming into work to care for Jeff. It’s a big company of about 100 people throughout the Bay Area, with about 50 in my division in San Francisco. I have worked for them for two years and never called in sick. Didn’t I have the right to take time off?”
A: Adam, I am sorry to learn of the serious injuries Jeff suffered. Drivers failing to yield the right-of-way at crosswalks is the No. 1 dangerous behavior contributing to fatal traffic collisions in San Francisco, according Vision Zero SF, a task force working to prioritize street safety and eliminate traffic deaths in San Francisco.
The law states that drivers “shall yield the right-of-way to a pedestrian crossing the roadway” in marked and unmarked crosswalks. Further, drivers approaching a pedestrian in any marked or unmarked crosswalk must slow down to “safeguard the safety of the pedestrian.”
I hope that Jeff is recovering well. He should consult with a trial lawyer, like myself, about bringing a legal claim against the driver. In regard to your termination, there are several types of leave laws in California that appear to provide you with protection and which appear to have been violated.
The most common type of leave taken in a case like yours is California Family Rights Act leave. It’s the California equivalent (but better) version of the federal Family Medical Leave act. This provides that “qualified workers” may take up to 12 weeks of unpaid leave (vacation or sick days with pay) for their own serious medical condition or the serious medical condition of a parent, spouse, domestic partner, child or for baby bonding when certain conditions are met. Employers are prohibited from retaliation and must provide an employee the same or comparable job upon returning to work.
A significant limitation of CFRA is that it does not cover companies with 50 or less employees. While all 50 employees need not work at a single location, they must work within 75 miles of the worksite where the employee is employed. If the employer is covered, then the employee is qualified to take the leave if he or she has been employed by the company for at least 12 months and has worked at least 1,260 hours within the past 12 months, approximately 25 hours per week over the past year. You appear to be covered if you worked the minimum of 1,260 hours in the last year.
All employees — even those not covered under CFRA because of the size of the company or the duration of their employment — are also covered by the Healthy Workplaces, Healthy Families Act, which was amended in 2015 to include paid sick leave. The law applies to virtually all California employers, regardless of size.
The leave may be used to care for an existing health condition or for preventative care for the employee or the employee’s family members. Family members include the employee’s parent, child, spouse, registered domestic partner, grandparent, grandchild and sibling.
Specifically, the law provides that employees who work in California for the same employer for 30 or more days within a year are entitled to accrue paid sick leave at a rate of one hour for every 30 hours worked. Accrued paid sick days carry over to the following year of employment.
Finally, for employees who work in San Francisco, The City has been a leader in providing rights to workers through its own paid sick leave ordinance, on which the state laws were based. Amendments to this ordinance, which parallel the state laws, went into effect in January 2017. The amendments provide workers in San Francisco the ability to take (limited) time off when they are sick, when they are needed to care for their family members or have been the victims of domestic violence.
Adam, I recommend you contact a trial lawyer who represents both victims of vehicle collisions (personal injury) and employment discrimination and retaliation. Few lawyers handle both areas of law, so make sure the lawyer you talk to doesn’t get myopic and look only at the injury case or the employment case. My firm has both employment and personal injury departments. We handle many of these “hybrid” cases for employees. Act promptly, as there a limitation of six months under some of these claims to bring an action before the Labor Commission and, potentially, the driver.