Beginning Monday, March 29, 2021, employers must begin providing California employees a new form of COVID-19 supplemental paid sick leave. The new version reaches small and large employers alike and mandates that employers provide COVID-19-related paid sick leave in more circumstances than last year’s supplemental paid sick leave law. Last year’s supplemental paid sick leave expired December 31, 2020. Governor Newsom signed the new statute into law last Friday, March 19.
Key features of the new law include:
— Generally speaking, all California employers of more than 25 employees are subject to the new requirements.
— Full-time employees are given a new bucket of 80 hours of supplemental paid sick leave (PSL) and part-time employees are given less depending on their circumstances.
— The list of circumstances in which employees may qualify to use the supplemental PSL is longer and liberalized as compared to the qualifying reasons under last year’s supplemental PSL scheme.
— Employees who were, at any time from January 1 through March 28, 2021, unable to work for a reason that would now qualify them for COVID-19 supplemental paid sick leave are entitled to a retroactive payment of supplemental PSL by their employer on the employees’ request.
The new law is involved, poses risk and requires that employers prepare to comply.
The New Law Covers More Employers
The COVID-19 supplemental paid sick leave statute in effect in California last year covered only employers of more than 500 employees. The new statute, California Labor Code section 248.2, however, covers private and public sector employers of more than 25 employees, including those with collective bargaining agreements. In counting employees for purposes of coverage under the new law, all part-time and full-time employees should probably be included. The new law does not make clear whether a business is covered only if at least 26 employees work in the California or if it employs at least 26 employees in total working anywhere across the U.S. Guidance issued to date by the California Labor Commissioner does not address this question. The best practice at this time is to operate on the understanding that the new statute applies to an employer’s employees working from California if the employer has more than 25 employees in total throughout the U.S.
Employers Must Provide Supplemental Paid Leave in More Circumstances
Effective March 29, 2021, covered employers must provide COVID-19 supplemental PSL to employees who are “unable to work or telework” due to any of the following reasons:
- The employee 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 federal Centers for Disease Control and Prevention (CDC), or a local health officer. Last year’s similar qualifying reason for COVID-19 supplemental PSL did not entitle employees to the paid leave where simply agency “guidelines” recommended that they quarantine and did not name the CDC and California Department of Public, in particular, as agencies whose guidance was binding on employers for purposes of supplemental PSL. This revised basis for eligibility will certainly permit more employees to qualify for the new version of supplemental PSL as compared to last year’s version.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. This reason was also a qualifying reason for last year’s version of such PSL.
- The employee is attending an appointment to receive a COVID-19 vaccine. This is a new qualifying reason for the 2021 COVID-19 supplemental PSL that was not included in last year’s version of supplemental PSL. Notably, the new law does not include a minimum or maximum amount of paid leave employers must provide for this purpose.
- The employee is “experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.” This qualifying reason was not included in last year’s version of supplemental PSL.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for a family member who is subject to an order or guidelines to quarantine or who has been advised by a health care provider to self-quarantine.
- The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to “COVID-19 on the premises.”
Qualifying reasons 5, 6 and 7, above, were not qualifying reasons for California’s supplemental paid sick leave in 2020. They were qualifying reasons, however, for emergency paid sick leave under the federal Families First Coronavirus Response Act (FFCRA), which expired December 31, 2020.
Employers must “make [the new] COVID-19 supplemental paid sick leave available for immediate use by the covered employee, upon the oral or written request” of the employee. The new law does not include language authorizing employers to request or require medical certification that employees satisfy any of the qualifying reasons for COVID-19 supplemental PSL. Guidance issued by the Labor Commissioner takes the position that employers may not require that employees requesting the new supplemental paid sick leave give the employer medical certification or other documentation establishing that they qualify for the leave: “The leave is not conditioned on medical certification.”
The Amount of Paid Leave Required
Full-time employees are entitled to 80 hours of the new COVID-19 supplemental PSL. An employee is full-time under the new law if either they worked or were scheduled to work, on average, at least 40 hours per week in the two weeks before they began their leave or the employer considers the employee full-time.
For their supplemental PSL bucket, part-time employees with “a normal weekly schedule” are entitled to the number of hours they are regularly scheduled to work in a two-week period. Part-time employees who work a “variable” schedule are entitled to 14 times the average number of hours they worked each day for the employer in the six months preceding their taking COVID-19 supplemental paid sick leave or over their entire period of employment if they worked less than six months for the employer. Part-time employees with a variable schedule who have worked 14 days or fewer are entitled to a bucket equivalent to the total number of hours they have worked for the employer.
As the calculations above make clear, the number of hours of COVID-19 supplemental PSL to which an employee is entitled must be determined at the time the employee begins the supplemental paid sick leave. The amount of supplemental PSL to which an employee is entitled may change if, for example, they move from a variable to a regular schedule (or vice versa), the number of hours for which they are scheduled increases or decreases, etc.
The statute caps at $511 per day and $5,110 in the aggregate the amount in COVID-19 supplemental PSL any employer must pay an employee, figures that track the maximums set for emergency paid sick leave under last year’s FFCRA.
Requirement for Retroactive Payments
Aside from requiring that employers pay COVID-19 supplemental PSL as employees qualify going forward from March 29, the new law also has a retroactive feature. If, at any time from January 1 through March 28, 2021, an employee was unable to work for any of the qualifying reasons for the new COVID-19 supplemental PSL and was not paid in that period, the employer must, on the employee’s request, pay the supplemental PSL the employee would have been paid had the leave been taken on or after March 29, 2021.
The retroactive payments must be made “on or before the payday for the next full pay period after the oral or written request of the covered employee.”
Consequence of Other Types of Paid Leave
Employers are obligated to provide the new COVID-19 supplemental PSL in addition to regular PSL under California’s Healthy Workplaces, Healthy Families Act.
However, where, on or after January 1, 2021, employers pay a benefit other than regular California PSL due to one of the qualifying reasons for COVID-19 supplemental PSL, and pay as much or more than the new supplemental PSL law requires, employers may count the hours of the other paid benefit towards the employees’ entitlement to the new supplemental PSL.
Employers are barred from requiring that employees use any other paid or unpaid leave, PTO or vacation time before or in lieu of the new COVID-19 supplemental PSL. However, as a means of satisfying their obligation to maintain employees’ wages while employees are excluded from the workplace under Cal/OSHA’s COVID-19 Emergency Temporary Standards, employers may require that employees first exhaust their COVID-19 supplemental PSL.
Paystub and Notice Requirements
The new law requires that employers set out on employees’ paystubs the amount of their available COVID-19 supplemental PSL separate from their regular paid sick leave.
Employers are required to give all employees notice of the new COVID-19 supplemental PSL requirements by posting notice for employees working on-site and by email to those working remotely. The Labor Commissioner has released a one-page notice for employers’ use, which you will find here.
The new law includes important provisions beyond the scope of this post, including requirements for the wage rates to be paid as supplemental PSL and provisions specific to providers of in-home supportive services and firefighters.
New California Labor Code sections 248.2 and 248.3 are here. The law expires September 30, 2021, with the exception that any employee on COVID-19 supplemental PSL at the time the statute expires must be allowed to exhaust their supplemental PSL after September 30 as if the law remained in effect.
Guidance issued by the California Labor Commissioner in the form of Frequently Asked Questions is here.
Employers will receive requests for retroactive supplemental PSL payments as early as next week. Employers should prepare now to administer such requests in a timely manner and in compliance with the new law.
Employers must also give notice of the new requirements and arrange with their payroll administrator to display each employee’s available COVID-19 supplemental PSL as a new line item on paystubs. I strongly recommend that employers prepare and implement policies that comply with the new supplemental PSL law.
Please contact your Fox Rothschild LLP counsel or the author for help with questions on this development.
This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.