CALIFORNIA RENEWS AND EXPANDS COVID-19
SUPPLEMENTAL PAID SICK LEAVE
March 22, 2021

Last year, supplemental paid sick leave was required to be paid to certain employees by certain employers under the FFCRA and California’s COVID-19 Supplemental Paid Sick Leave (SPSL) law – both expired on December 31, 2020.

To fill the gap left by the expiration of these SPSL laws, on March 19, 2021 Governor Newsom signed another COVID-19 related bill (SB 95) that will require California employers with 25 or more employeesto provide COVID-19 Supplemental Paid Sick Leave benefits of up to 80 hours to those employees impacted by COVID-19, even if they took paid sick leave last year.

The law is retroactive toJanuary 1, 2021 and remains in effect through September 30, 2021.

The key components of the bill are summarized below.

Who is A Covered Employer

This new law applies to public and private employers with more than 25 employees.

Who is an Eligible Employee

Employees are eligible if they are “unable to work or telework” due to one of the several qualifying reasons; previously those working remotely were not entitled to SPSL benefits.

What are the Qualifying Reasons For Leave

The reasons for leave are essentially the same as under prior legislation but includes new reasons associated with the vaccine and where the employee cannot telework. The qualifying reasons include when the employee:

  • NEW: is attending an appointment to receive a vaccine for protection against contracting COVID-19,
  • NEW: is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework,
  • is experiencing symptoms of COVID-19 and seeking a medical diagnosis,
  • is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer with jurisdiction over the workplace. (If covered under one or more quarantine or isolation period, the employee is entitled to the SPSL under the order that provides for the longest minimum period of time).
  • has been advised by a health care provider to self-quarantine due to concerns related to COVID-19,
  • is caring for a family member who is subject to a quarantine or isolation order or guidelines, or who has been advised to self-quarantine by a health care provider, or
  • NEW: is caring for a child (regardless of age) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

These new qualifying reasons significantly expand the scope for the paid sick leave to include things like vaccinations, caring for others and school/childcare closures.

Retroactive Effect

The law is retroactive to January 1, 2021 which will require employers to issue retroactive payments to employees who took leave for a covered reason as of January 1st. The retroactive payment would have to be paid “on or before the payday for the next full pay period after the oral or written request of the covered employee.”

What Benefits Are Required

Employees are provided with a new “bank” of COVID-19 related SPSL for 2021 – meaning that even if an employee had taken SPSL in 2020 they are entitled to 80 “new” hours of SPSL.

  • Full time employees are provided up to 80 hours of SPSL.
  • An employee who worked or was scheduled to work, on average, at least 40 hours per week in the two weeks before they received supplemental paid sick leave is similarly entitled to 80 hours of leave.
  • Part-time employees who work normal schedules would be entitled to the total number of hours they are typically scheduled to work in a two-week period.
  • Part-time employees with variable schedules would be entitled to the average number of hours in the preceding six months, or during the period the employee has worked for the employer.
  • Employees who have worked 14 days or fewer would be entitled to receive the total number of hours they have worked for the employer.
The COVID-19 SPSL is in addition to the paid sick leave that an employer is already required to provide to employees under the current California Paid Sick Leave law (the Healthy Workplaces, Healthy Families Act of 2014).
Rate of Pay & Caps On Pay

Rate of Pay: Non-exempt employees shall be paid at the highest of the following rates:

  • The rate calculated in the same manner as the regular rate of pay for the workweek in which the covered employees uses sick leave, whether or not the employee actually works overtime in that workweek;
  • The rate calculated by dividing the employee’s total wages (not including overtime) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
  • The state minimum wage; or
  • The local minimum wage to which the employee is entitled.

Exempt employees shall be paid in the same manner as the employer calculates wages for other forms of paid leave.

Caps on Payment: The amount of COVID-19 supplemental paid sick leave is capped at $511 per day and $5,110 total per worker (unless these limits in the federal FFCRA are extended).

Notice Requirements

Employers will be required to provide notice to employees as to their rights to SPSL. The notice can be provided by electronic means for those employees who do not frequent the workplace.

Employers would need to begin complying with the written notice requirements the next full pay period following the effective date of the legislation.

Within seven days of the law’s enactment, the Labor Commissioner will publish a required notice of the new law to post or provide to employees.

Interaction with Other Leaves

An employer may credit the hours of other paid leave the employer provided to employees on or after January 1, 2021, for absences taken for the same COVID-19–related reasons as those contained in the bill against the SPSL required under AB 95. For example, if an employee was provided with 5 hours of paid leave (under FFCRA like paid leave) on or after January 1, 2021, a full-time employee would be entitled to 75, not 80, hours of COVID-19 SPSL.

However, any paid sick time taken by an employee in 2020 may not be applied as a credit against this new bank of SPSL.

Employers who already provide COVID-19 specific supplemental paid sick leave for leave taken after January 1, 2021 (pursuant to any local ordinance) that is available for the same qualifying reasons and paid at the same rate as required may apply those hours towards the 80 hour SPSL obligation.

It is important to note that, an employer may not require that a worker use other paid time off (such as California paid sick leave or Los Angeles Paid Sick Leave) nor may an employer require an employee to take unpaid leave before the worker uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave. COVID-19 supplemental paid sick leave will be in addition to any paid sick leave that may be available to the worker.

Interaction with “Continued Earnings” Under the Cal/OSHA Emergency Temporary Standard

Under the Emergency Temporary Standards (ETS) that was implemented by Cal-OSHA in November 2020, employers are required to pay “exclusion pay” and “continue earnings” for employees who are excluded from the workplace as COVID-19 cases during their infectious period or for someone who was a close contact and exposure at work.

With the passage of the new SPSL law, an employer may require an employee to first exhaust their COVID-19 SPSL in order to satisfy the “continued earnings” obligation of the ETS. This is a welcome clarification for employers.

Paystub Requirements

The employer must separately list the amount of an employee’s available COVID-19 SPSL on the employee’s wage statement or in a separate writing — this line item must be separate from any other available paid sick leave or paid time off that is required to be contained on the employee’s wage statement.

For employees that have part-time and variable schedules (and therefore variable leave entitlements), the employer may satisfy the wage statement obligation by doing an initial calculation of leave available and indicating “(variable)” next to that calculation on the initial and subsequent wage statements. But the employer must update this calculation on the wage statement when an employee requests to use leave or requests their payroll records.

The wage statement requirement becomes effective the first full pay period after the statute’s effective date.

Retroactivity

The new law sets forth a process for retroactive payments as follows:

  • If an employee previously took leave on or after January 1, 2021 that otherwise would have qualified under COVID-19 supplemental paid sick leave and the employer did not provide paid leave (or did not compensate at the required level) then upon the oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.
  • For such retroactive payments, the number of hours of leave corresponding to the amount of the retroactive payment shall count towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide to the covered employee under the new mandate.
  • This retroactive payment shall be paid on or before the payday for the next full pay period after the oral or written request of the covered employee and must be reflected on the corresponding wage statement.

 

When Does This SPSL Law Expire?

This law will remain in effect through September 30, 2021. An employee that is on leave as of the expiration date, will be permitted to take their full amount of leave even if it extends beyond September 20th– unless the legislature extends the deadline or enacts another new mandate.

Issues of Concern & Unanswered Questions:

It is almost certain that several employees at a company have taken time off since January 1, 2021 due to any number of reasons – including a now SPSL COVID-19 covered reason. And unless the employer maintained a record of the reasons an employee missed work over the past few months, it will be difficult for an employer to establish who is legitimately eligible for compensation under this new mandate.

What Should I do Now?
  1. Review employee absence records and determine if any time off since January 1st could be covered under this COVID-19 SPSL law.
  2. Update payroll forms and information to include a separate COVID-19 SPSL entry to be included with the wage statements.  Contact your payroll processors to ensure that they have the ability to include the SPSL on the wage statements as a separate line item.
  3. Train Management on the new COVID-19 SPSL requirements.
  4. Post the Labor Commissioner’s Notice once it becomes available.

As the guidance issued by the state and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.

This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2021.

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