Effective March 29, 2021, employers with 26 or more employees must provide up to 80 hours of paid sick leave to their California employees who cannot work (including telework) due to certain COVID-19-related reasons. This is commonly being referred to as COVID-19 Supplemental Paid Sick Leave, or “CSPSL.”
Unfortunately, this new leave comes with many new rules that are unique from the other COVID leave laws enacted over the last year – but we are here to help employers piece it all together.
The new law only requires action from employers with 26 or more employees. Importantly, there is no explicit geographic limitation to this employee count – employers should therefore assume that the law will apply if they have 26 employees anywhere, as long as one of those employees works within the state of California. Further, unlike the FFCRA, there are no exceptions for large (500+ employee) employers.
All California employees are covered, regardless of their length of employment or full-time status.
Amount of Leave
“Full time” employees (being those whom their employer considers to be full-time under their policies, or those who were either scheduled to work or did work at least 40 hours per week during the two weeks before the need for leave) are entitled to up to 80 hours of leave under the new law.
All other employees are entitled to a number of leave hours equal to (i) the amount that they would normally be scheduled to work over two weeks; or (ii) if the employee worked a variable number of hours, 14 times the average number of hours they worked each day in the six months preceding the need for the leave (or if the employee worked for less than six months but more than 14 days, over that period of time); or (iii) if the employee worked for 14 or fewer days, the total number of hours the employee worked preceding the need for the leave.
Retroactive to January 1, 2021
The new law is retroactive to January 1, 2021, meaning that if a qualifying reason for leave (discussed below) occurred anytime on or after January 1, 2021, employers must retrace their steps and make sure to classify and pay such time under this new law appropriately.
Offset for Federal, Local, or Employer-provided supplemental leave after January 1, 2021
If employers provided employees with supplemental leave not otherwise required under other California laws (e.g., not paid leave under California’s default, non-COVID sick leave law) on or after January 21, 2021, but before March 29, 2021, the employer can use that time to offset their obligations under this new law if it was for a qualifying reason and properly compensated. If that leave was underpaid, the employer may provide increased back-pay for the difference to qualify it for the offset. The employee may also demand that their employer provide this increased back-pay for otherwise qualifying leave, and the employer must provide the payment on or before the payday for the next full pay period after the request is made.
Leave provided under Federal or local laws (i.e., under the FFCRA or San Jose’s Urgency Covid-19 Paid Sick Leave Ordinance) can act as an offset – just not other California required leave.
Qualifying Reasons For Leave
This new leave is available to employees if they are unable to work (inclusive of telework) for an employer for 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, or a local health officer who has jurisdiction over the workplace (if the employee is subject to more than one of the foregoing, they are permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period);
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19;
- The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for a family member (a child, grandchild, grandparent, parent, sibling, or spouse of the employee) who is subject to an order or guidelines described in (1) above, or who has been advised to self-quarantine described in (2) above; or
- The covered employee is caring for a child (meaning a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis, regardless of age or dependency status); whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
Employees are responsible for informing their employer as to how many hours of leave they need to use. Employees are also allowed to choose whether they will use this leave or some other paid or unpaid leave available under the law or under their employer’s policies to cover an absence, except when an absence is required by Cal-OSHA COVID-19 Emergency Temporary Standards and/or Cal-OSHA Aerosol Transmissible Diseases Standards, in which case the employer can choose for the employee to first exhaust leave under this new law.
The law does not permit employers to ask (or require employees to provide) verification or proof of their need for the leave. However, very limited exceptions to this may apply if the employer has a good reason or evidence to suggest an employee is abusing the leave law.
Rate of Pay
For non-exempt employees, leave under the new law must pay at the highest of the following three rates of pay: (i) the employee’s “regular rate of pay” whether or not the employee worked overtime in the workweek they use leave; (ii) the employee’s total wages (excluding overtime premiums) over the prior 90 days of employment divided by the employee’s total hours worked over the prior 90 days of employment; (iii) the applicable state or local minimum wage. Employers should be mindful of this new calculation, as it is different from the way pay was determined under prior California and Federal COVID leave laws!
Exempt employees must be paid in the same manner as the employer calculates wages for other forms of paid leave time.
Whether non-exempt or exempt, the new law caps required pay at $511 per day and $5,110 in total – which mirrors the highest daily and total maximums under the FFCRA. If those amounts ever increase under the FFCRA, they will similarly increase under this new leave law.
Employees who reach the daily or total maximums may also use other paid available leave to “top-off” their pay so that they are fully compensated during any leave taken.
Notice Posting Requirement
Employers must also either post a notice for this new paid sick leave benefit or email employees a notice of the new benefit going into effect. The California Labor Commissioner published a single-page model notice that employers can use for their posting or email (as well as a quick reference guide for how the new leave law operates).
Potential Tax Credits
The new law does not provide for any California-specific tax credit, relief, or reimbursement – however, not all is lost on this front! Employers may still be able to apply for tax credits under the FFCRA (the national COVID-19 sick leave law) in situations where an employee’s use of sick leave simultaneously qualifies under both the FFCRA and these new California sick leave obligations.
Many, but not all, of the qualifying reasons for leave under this new law are also qualifying reasons for leave under the FFCRA, so employers should first check to see if they are facing one of the possible overlapping reasons for leave before assuming they can get the credit. Also, Congress only extended availability of the FFCRA tax credit through March 31, 2021, so applicability may be limited.
This new leave law expires on September 30, 2021. However, if an employee is using this leave on September 30, 2021, they are allowed to take further COVID-19 paid sick leave to which they would have been entitled under this section as if the act did not yet expire.
Multi-Layered Approach When Confronting Potential Qualifying Basis for Leave
When analyzing whether an employee is entitled to any form of paid or protected leave for circumstances related to COVID-19, employers should remember there may be several layers of laws to consider all at once, including:
- Federal laws and regulations (i.e., FFCRA leave);
- State laws and regulations (i.e., this new COVID-19 Supplemental Paid Sick Leave, California non-COVID-19 Paid Sick Leave under the Healthy Workplaces, Healthy Families Act of 2014, FEHA medical condition and disability accommodation, workers’ compensation, and CalOSHA mandated leave protocols); and
- Local laws and regulations (i.e., the City of San Jose’s Urgency Covid-19 Paid Sick Leave Ordinance).
This is a lot to handle, and we are here to help. If you have any questions about COVID sick leave laws, or any other issue relating to employment law, please contact one of our attorneys:
|Eric C. Bellafronto||Ernest M. Malaspina||Sean Bothamley|
|Karin M. Cogbill||Richard M. Noack||Jonathan Heller|
|Jennifer Coleman||Daniel F. Pyne III||Shirley Jackson|