Search results for: paid sick leave

On October 4, 2023, Governor Newsom approved a new law, SB 616, that increases the amount of paid sick leave that nearly every employer in California must offer to employees.  Here are five key issues California employers need to understand about the new law and to comply with its requirements:

1. New requirements under SB 616:

As background, California’s existing paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, became effective on January 1, 2015.  The law requires employers of all sizes to provide 1 hour of paid sick leave for every 30 hours worked to employees who worked for the employer for 30 or more days.  Employers may cap the accrual of paid sick leave at 48 hours and cap the use of paid sick leave at 3 days or 24 hours, whichever is greater, within a 12-month period.  SB 616 increases the amount of paid sick leave employers must provide starting on January 1, 2024. 

SB 616 will require employers to provide the following as of January 1, 2024:

  • Requires employers to provide paid sick leave of 5 days or 40 hours.
  • Employers may still offer an accrual rate of one hour of PSL for every 30 hours worked. For employers that use a difference accrual method other than 1 hour of PSL for every 30 hours worked, the employer must offer on an accrual on a regular basis of no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period, and no less than 40 hours of accrued sick leave or paid time off by the 200th calendar day of employment or each calendar year, or in each 12-month period. Employers may satisfy the accrual requirements by providing not less than 24 hours or 3 days of PSL by the employee’s 120th calendar day of employment, and no less than 40 hours or 5 days of PSL by the employee’s 200th calendar day of employment.
  • Employers may limit the use of PSL to 40 hours or five days in each year of employment, calendar year, or 12-month period.
  • Employers may cap the accrual of paid sick leave to 10 days or 80 hours.  A total of 10 day or 80 hours is also the cap that employers can place on the amount of paid sick leave an employee can carryover from year to year.  However, employers who provide an upfront grant of 5 days or 40 hours at the beginning of each year do not need to provide any accrual, nor do they need to allow any carryover. 

2. Update new hire packets and Notice to Employee:

Employers must update their new hire packages to include an updated Notice to Employee required by Labor Code section 2810.5.  The current version (which does not reflect the new requirements going into effect on January 1, 2024) is available here: https://www.dir.ca.gov/dlse/lc_2810.5_notice.pdf 

Stay tuned for updates regarding when this form is updated to comply with SB 616. 

3. Update employee handbooks and workplace posters:

Employer’s paid sick leave policies in their handbooks will need to be updated to conform to the new requirements under SB 616.

4. Update pay stub information:

Also, just as required under existing law, the new law requires that employers provide notice to the employee of the amount of PSL that is available to the employee by employee’s pay date with the employee’s payment of wages.  This notice can be made on the employee’s pay stub or some other writing at the time the employee is paid.  Employers should start working with their payroll companies to ensure the updated amounts are reflected on pay stubs issued after January 1, 2024.  It is recommended that a sample from the payroll processing company should be reviewed prior to January 1, 2024 to ensure it meets the legal requirements.

5. Do not rely on payroll company to implement these changes:

Employers must proactively contact their payroll companies to ensure that the new upfront grants or accrual rates are reflected on the employee pay stubs and that the paid sick leave is being tracked according to the new upfront grants or accrual rates after January 1, 2024.  Do not rely on your payroll company to automatically update the pay stubs and tracking of paid sick leave – make sure your payroll company starts working on this sooner than later.  

On September 29, 2022, Governor Newsom signed AB 152 into law, extending California’s Supplemental Paid Sick Leave (“SPSL”) law through December 31, 2022 (the law was previously set to expire on September 30, 2022).  The law requires employers with 26 or more employees to provide up to 80 hours of COVID-19 related paid sick leave.  Here are five key issues California employers should know about the new law and some reminders about obligations under California’s Supplemental Paid Sick Leave:

1. AB 152 extends employers’ obligation to provide SPSL until December 31, 2022.

AB 152 extends SPSL until December 31, 2022 (the prior law was set to expire on September 30, 2022).  The paid sick leave requirement expires on September 30, 2022 (but employees currently using the sick leave can continue its use past the September 30th deadline).

The prior law, and AB 152 applies to employers with more than 25 employees.

2. The new law establishes a grant program to assist qualifying businesses with costs of providing SPSL.

AB 152 establishes a grant program to assist qualified small businesses and nonprofits that have incurred costs in providing SPSL to employees.  The grants are to reimburse employers for SPSL provided between January 1, 2022 and December 31, 2022.  The grants are capped at $50,000 and are available for employers who are:

  • a “C” corporation, “S” corporation, cooperative, limited liability company, partnership, or limited partnership, registered 501(c)(3), 501(c)(6), or 501(c)(19);
  • began operating before June 1, 2021;
  • is currently active and operating;
  • has 26 to 49 employees and will declare under penalty of perjury of this fact;
  • has provided SPSL pursuant to Labor Code section 248.6 and 248.7;
  • provides organizing documents (such as Articles of Incorporation, Certificate of Organization, etc…) and tax returns in 2020 or 2021.

3. Which employees are entitled to paid sick leave?

AB 152 does not change the qualifying reasons for SPSL. As a reminder, employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to the following reasons:

  1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
  2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to certain limitations.
  4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  7. The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  8. If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)

The new law does provide that employers may require employees to submit to a diagnostic test on or after the fifth day after they initially tested positive and require the employee provide documentation of this test.  If the second test was positive, the employer may require the employee to submit to a third diagnostic test within no less than 24 hours.  The employer must pay for these tests.

4. How much paid leave is required?

AB 152 does not change the amount that employees are entitled to receive in SPSL.  The employee is eligible for potentially up to 80 hours of leave available under two different banks:

  • Bank #1: Employees are entitled up to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.
  • Bank #2: Employees are entitled up to 40 hours of paid leave for reason number 8 listed above (if they or a family member test positive).

Employers should have internal tracking measures in place to track the reason for the leave and how much of the leave the employee has taken under each of the two banks of leave available.

Calculating Amount of Leave Available

There is also no change in how employers are to calculate the amount of leave.  The calculation varies for employers based on the amount of work employees perform, such as part-time, variable scheduled employees, and full-time employees.  Employers will need to review the requirements in order to make the appropriate calculations for these different classes of employees.

Calculating Rate of Pay

The law sets forth how employers are to calculate the rate of pay for nonexempt employees, and exempt employees.  Employers need to carefully review these calculations to ensure the proper rate of pay is being used when an employee takes qualifying paid leave.

Caps on Payments

The prior law placed a total cap on SPLS at 80 hours for the period between January 1, 2022 to September 30, 2022.  This cap is still in place, even though employers must continue to provide SPSL until December 31, 2022.  Therefore, if an employee has already used all of their eligible SPSL, the new law does not require employers to provide any additional leave.

Interaction with California’s Healthy Workplaces, Healthy Families Act and Cal/OSHA ETS Exclusion Pay, and Local Ordinances

As a reminder, the supplemental paid sick leave is in addition to the paid sick leave employees are entitled to under California’s Healthy Workplaces, Healthy Families Act set forth in Labor Code 246.  Moreover, employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).  The California supplemental paid sick leave leaves in place any employer obligation to comply with local paid sick leave requirements, such as those in Los Angeles City and County, Long Beach, and Oakland.

5. New updated posters published by the Labor Commission, and reminder about pay stub requirements.

The Labor Commissioner has updated the posters employers are required to post in the workplace.  The updated posters are available here:

English: https://www.dir.ca.gov/dlse/COVID19resources/2022-COVID-19-SPSL-Poster.pdf

Spanish: https://www.dir.ca.gov/dlse/COVID19resources/Spanish/2022-COVID-19-SPSL-Poster.pdf

The poster is required to be displayed in a place at the worksite where employees can easily read it. If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.

The law requires employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid.  This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day.  The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave.  This requirement has been in place since the full pay period following February 19, 2022 and will continue until December 31, 2022.

Other provisions of the law also address firefighters and providers of in-home supportive services employees.

On February 9, 2022, Governor Newsom signed a new law requiring employers to provide supplemental COVID-19 paid sick leave during 2022 through September 30, 2022.  The law, SB 114, unlike the supplemental paid sick leave law passed in 2021, provides for no offsetting tax credits for employers to assist with the added costs this paid sick leave places on businesses across the state.  Here are five reminders for California employers about the law and its related deadlines as we approach its September 30th expiration:

1. The COVID-19 supplemental paid sick leave law took effect on February 19, 2022 and expires on September 30, 2022.

The Governor signed the law on February 9, 2022, and the paid sick leave requirement took effect 10 days after the enactment of the law – February 19, 2022.  The law applied retroactive obligation for employers to pay for qualifying paid sick leave starting January 1, 2022.  The paid sick leave requirement expires on September 30, 2022 (but employees currently using the sick leave can continue its use past the September 30th deadline).

2. Which employers are covered by the law?

The law applies to employers with more than 25 employees.

3. Which employees are entitled to paid sick leave?

Employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to the following reasons:

  1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
  2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to certain limitations.
  4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  7. The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  8. If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)

4. How much paid leave is required?

The employee is eligible for potentially up to 80 hours of leave available under two different banks:

  • Bank #1: Employees are entitled up to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.
  • Bank #2: Employees are entitled up to 40 hours of paid leave for reason number 8 listed above (if they or a family member test positive).

Employers should therefore implement internal tracking measures to track the reason for the leave and how much of the leave the employee has taken under each of the two banks of leave available.  More information can be found on the Labor Commissioner’s FAQ page.

Calculating Amount of Leave Available

The law sets forth how employers are to calculate the amount of leave for part-time, variable scheduled employees, and full-time employees.  Employers need to review the requirements in order to make the appropriate calculations for these different classes of employees.

Calculating Rate of Pay

The law sets forth how employers are to calculate the rate of pay for nonexempt employees, and exempt employees.  Employers need to carefully review these calculations to ensure the proper rate of pay is being used when an employee takes qualifying paid leave.

Caps on Payments

However, the total paid sick leave is capped at 80 hours for the period between January 1, 2022 to September 30, 2022.  In addition, employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee (unless federal legislation changes these amounts set forth in the FFCRA).

Interaction with California’s Healthy Workplaces, Healthy Families Act and Cal/OSHA ETS Exclusion Pay, and Local Ordinances

The supplemental paid sick leave is in addition to the paid sick leave employees are entitled to under California’s Healthy Workplaces, Healthy Families Act set forth in Labor Code 246.  Moreover, employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).  The California supplemental paid sick leave leaves in place any employer obligation to comply with local paid sick leave requirements, such as those in Los Angeles City and County, Long Beach, and Oakland.

5. Notice and pay stub requirements.

The law requires employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid.  This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day.  The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave.  This requirement took effect the next full pay period following February 19, 2022.

Employers are also required to post or distribute a notice to employees that was developed by the Labor Commissioner and can be found here.

Other provisions of the law also address firefighters and providers of in-home supportive services employees.

California’s 2022 COVID-19 Supplemental Paid Sick Leave becomes effective tomorrow, February 19, 2022 (for background and basics about the new law, see our prior post here).  This week, the Labor Commissioner published additional resources just before the law becomes effective.  Below is a summary of the notice requirements (and with a link to the required poster) and a review of the critical issues addressed in the Labor Commissioner’s FAQs published this week to aid employers in meeting their obligations under the new law starting on February 19:

1. The required poster for employers is available on the Labor Commissioner’s website.

The only required notice employers must provide to employees about the new SPSL is through posting a poster developed by the Labor Commissioner.  The poster was published this week and can be found here.  (The Spanish version is here).

Employers who have employee that do not “frequent a workplace,” can satisfy the posting requirement by sending the notice to employees electronically.

2. The Labor Commissioner’s FAQs provide how employees can make requests for retroactive SPSL payments for leave between January 1, 2022 and February 19, 2022.

Employees who have taken leave from January 1, 2022 through February 19, 2022, for one of the reasons covered under the SPSL, the employee may ask for payment for this leave on or after February 19, 2022.  The Labor Commissioner’s FAQ #13 explains:

For example, if a covered employee had to take two hours off for a vaccine appointment on January 15, 2022, the employee can make an oral or written request to the employer to be paid for that time off in January, because it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave.  The oral or written request must be made on or after February 19, 2022. A request made before February 19 does not count.  If an employee is unable to make the request themselves or has difficulty locating an employer to provide proper notice, they may contact the Labor Commissioner’s Office, which may be able to provide assistance.

After the employee makes the request, the employer will have until the payday for the next full pay period to pay the “retroactive” 2022 COVID-19 Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2022 COVID-19 Supplemental Paid Sick leave hours have been used by the covered employee.

3. The FAQs explain what type of documentation employers may require from employees.

There are a limited number of occasions for when employers can condition the payment of SPSL only if employees provide certain documentation.  FAQ # 19 makes it clear that generally employees do not need to provide documentation to the employer in order to take SPSL.  However, that FAQ explains if the employer learns that the “employee is not requesting 2022 COVID-19 Supplemental Paid Sick Leave for a valid purpose” the employer could reasonably request documentation (but this is a very limited exception that employers must approach with caution).

The FAQs set forth the following the additional circumstances of when an employer may condition payment of SPSL upon documentation from the employees:

  • Employers may ask employees for documentation before paying retroactive payment for SPSL related an employee’s positive COVID test or the employee’s family member’s positive COVID test.

FAQ #14 explains:

… if the employee is requesting retroactive pay for leave that is available only if the employee or qualifying family member was positive for COVID-19, an employer may request documentation. This documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

  • Employers may ask for documentation before paying SPSL that is only available after a positive test. See FAQ # 20.
  • Employers may ask for documentation when an employee uses more than three days or 24 hours for a single vaccine appointment and recovery from any related side effects. Here, an acceptable request by the employer would be a note from a health care provider that the employee or family member continued to have vaccine side effects. See FAQ #20.

Other than these limited exceptions, employers may not condition the payment of SPSL upon employee providing documentation supporting their request for SPSL.

4. What COVID-19 tests are acceptable under the SPSL?

FAQ #21 provides that “an employee may take an over-the-counter rapid test (Antigen) or a test that is scheduled at a testing facility.  The law does not specify type of test and does not place conditions on how the test is administered in order to qualify for leave.”

5. Employers may count paid sick leave provided under local paid sick leave ordinances towards the 2022 SPSL requirement.

The FAQs permit employers to count leave provided under local ordinances towards the SPSL requirement under certain circumstances.  FAQ # 27 explains:

For example, if an employer provides a full-time covered employee 40 hours of COVID‑19-related supplemental paid sick leave pursuant to a local ordinance, those 40 hours would count toward the employer’s obligations under the 2022 COVID-19 Supplemental Paid Sick Leave law, so long as the leave provided is for a reason listed under the 2022 COVID-19 Supplemental Paid Sick Leave law and is at least at the same rate of pay as this law requires.

As the new law takes effect on February 19, 2022, it is likely that the Labor Commissioner will update the FAQs with further clarifications as employers begin to implement the requirements and additional questions arise.  Employers should review the full FAQs available here, and regularly check for any updates to the FAQs.

On February 9, 2022, Governor Newsom signed a new law requiring employers to provide supplemental COVID-19 paid sick leave in 2022.  The law, SB 114, was passed quickly by the legislature and signed by the Governor.  Unlike the supplemental paid sick leave law passed in 2021, there are no offsetting tax credits for employers to assist with the added costs this new paid sick leave will place on businesses across the state.  Here are five key issues California employers should know about the new law and its related deadlines:

1. The new COVID-19 supplemental paid sick leave law takes effect on February 19, 2022.

The Governor signed the law on February 9, 2022, and therefore the paid sick leave requirement takes effect 10 days after the enactment of the law – February 19, 2022.  The law applies retroactive obligation for employers to pay for qualifying paid sick leave starting January 1, 2022.  The paid sick leave requirement expires on September 30, 2022 (but employees currently using the sick leave can continue its use past the September 30th deadline).

2. Which employers would be covered by the law?

The law applies to employers with more than 25 employees.

3. Which employees are entitled to paid sick leave?

Employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to the following reasons:

  1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
  2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to certain limitations.
  4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  7. The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  8. If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)

4. How much paid leave is required?

The employee is eligible for potentially up to 80 hours of leave available under two different banks:

  • Bank #1: Employees are entitled up to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.
  • Bank #2: Employees are entitled up to 40 hours of paid leave for reason number 8 listed above (if they or a family member test positive).

Employers will therefore have to implement internal tracking measures to track the reason for the leave and how much of the leave the employee has taken under each of the two banks of leave available.  It is expected that there will be many questions regarding how employers are to account for the various reasons for leave under the two different banks of leave.  Employers will need to consult legal counsel on this and closely monitor any updates from the Labor Commissioner.

Calculating Amount of Leave Available

The law sets forth how employers are to calculate the amount of leave for part-time, variable scheduled employees, and full-time employees.  Employers will need to review the requirements in order to make the appropriate calculations for these different classes of employees.

Calculating Rate of Pay

The law sets forth how employers are to calculate the rate of pay for nonexempt employees, and exempt employees.  Employers will need to carefully review these calculations to ensure the proper rate of pay is being used when an employee takes qualifying paid leave.

Caps on Payments

However, the total paid sick leave is capped at 80 hours for the period between January 1, 2022 to September 30, 2022.  In addition, employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee (unless federal legislation changes these amounts set forth in the FFCRA).

Interaction with California’s Healthy Workplaces, Healthy Families Act and Cal/OSHA ETS Exclusion Pay, and Local Ordinances

The supplemental paid sick leave is in addition to the paid sick leave employees are entitled to under California’s Healthy Workplaces, Healthy Families Act set forth in Labor Code 246.  Moreover, employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).  The new California supplemental paid sick leave leaves in place any employer obligation to comply with local paid sick leave requirements, such as those in Los Angeles City and County, Long Beach, and Oakland.

5. Notice and pay stub requirements.

The law requires employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid.  This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day.  The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave.  This requirement takes effect the next full pay period following February 19, 2022.

Employers are also required to post or distribute a notice to employees that will be developed by the Labor Commissioner.  The Labor Commissioner is in the process of updating its website, and will make the posters and FAQs available here.

Other provisions of the law also address firefighters and providers of in-home supportive services employees.

[Update: On February 9, 2022, the Governor signed SB 114 into law – see our updated article here on the new California supplemental paid sick leave requirements enacted by this law].

This week, Assembly Bill 84 (AB 84) was published setting forth the parameters of a proposed law for another COVID-19 supplemental paid sick leave requirement for California employers in 2022.  The Governor and legislature announced last month that they were discussing the framework of the law.  AB 84 gives employers some guidance on the likely COVID-19 supplemental paid sick leave law that will be implemented in the near future.  Here are five key issues California employers should know about the proposed legislation:

1. When will the new COVID-19 supplemental paid sick leave law take effect?

Currently the law has not been enacted, so there are no obligations for employers yet.  However, once the final law is passed and signed by the Governor, it will take effect upon the Governor’s signature.  The law provides that the paid sick leave requirement takes effect 10 days after the enactment of the law and would create a retro-active obligation for employers to pay for qualifying paid sick leave starting January 1, 2022.  The paid sick leave requirement would expire on September 30, 2022.  Given how quickly this new law will likely make its way through the legislature, employers are encouraged to start planning for compliance as soon as possible.

2. Which employers would be covered by the law?

The law would apply to employers with more than 25 employees.

3. Which employees are entitled to paid sick leave?

Employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to the following reasons:

  1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
  2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to certain limitations.
  4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  7. The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  8. If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)

4. How much paid leave is required?

Employees are entitled to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.  Part-time employees are entitled to a proportional amount based on how many hours they normally work.  Full-time employees are entitled to an additional 40 hours of paid leave for reason number 8 above (a positive test) and part-time employees are entitled to a proportional amount based on their normal hours.  However, the total paid sick leave is capped at 80 hours for the period between January 1, 2022 to September 30, 2022.  In addition, employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee (unless federal legislation changes these amounts set forth in the FFCRA).  Moreover, employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).

5. What are employers notice and pay stub requirements?

The law would require employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid.  This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day.  The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave.  This requirement would take effect in the next full pay period following the date the law becomes effective.

Employers will also be required to post or distribute a notice to employees that would be developed by the Labor Commissioner.

Just as employers thought there could not be any additional paid sick leave requirements, the County of Los Angeles passed yet another COVID-19 paid leave requirement for employees obtaining or effected by the vaccine.  This ordinance requires employers to pay up to four hours per injection for COVID-19 vaccine paid leave under certain circumstances.  The ordinance takes effect on May 18, 2021 and applies retroactively to January 1, 2021 and expires on August 31, 2021.

1. Covered Employers

The Los Angeles COVID-19 vaccine paid leave ordinance applies to all employers who have employees working in the unincorporated areas of the County of Los Angeles.

2. Covered Employees

Any employee working in an unincorporated area of the County of Los Angeles is covered by the new ordinance.  To be eligible for this Vaccine Paid Leave, the employee is required to have exhausted all paid leave under the California 2021 COVID-19 Supplemental Paid Sick Leave set forth in Labor Code section 248.2.

3. Amount of Vaccine Paid Leave

Employees are entitled to take paid leave for “receiving each COVID-19 vaccine injection,” time traveling to and from a COVID-19 vaccine appointment, and to recover from symptoms related to receiving a COVID-19 vaccine that prevent the employee from being able to work or telework.  The COVID-19 Vaccine Paid Leave is in addition to paid sick leave required under California’s Healthy Workplaces Healthy Families Act of 2014.

Employees are entitled to up to four hours of paid leave “per injection.”  Therefore, if an employee is required to have two injections, they would be permitted to have up to eight hours of paid leave.

The employee’s regular rate of pay is calculated on the highest average two-week pay during January 1, 2021 to May 18, 2021.  Part-time employees are entitled to the prorated amount of four hours per injection based on their normally scheduled work hours over the two-week period before the injection.  Therefore, an employee who worked 20 hours per week during the two-week period before the injection would be entitled to two hours of COVID-19 Vaccine Paid Leave per injection.

4. Can employers require documentation from the employee?

Employers may require employees to provide written verification of the COVID-19 vaccine to be eligible for the paid leave.

5. Poster and Documentation Requirements

The Los Angeles County Department of Consumer and Business Affairs (“DCBA”) will be developing a poster that employers must post in a conspicuous place regarding the COVID-19 Vaccine Paid Leave.

Employers must keep payroll records to show compliance with this ordinance for four years.  This includes the employee name, address, occupation, dates of employment, rate of pay, and the amount paid.

On Friday, we replayed our March 23 webinar covering various topics including the American Rescue Plan’s renewal of FFCRA benefits and California’s brand new COVID-19 Supplemental Paid Sick Leave (SB 95). In both the original run and the replay, we got tons of great questions from employers about these two new laws. Below are answers to a few of the most common questions we get.

If an employee took paid leave in 2020 under the FFCRA, do I have to provide them new paid leave in 2021?

Yes and no. Whereas FFCRA paid sick and family leave was mandatory for covered employers last year, the renewed FFCRA for 2021 is optional. Eligible employers can elect to make FFCRA leave available to employees, but are not required to do so. Because California employers have corresponding mandatory leave obligations under California law (including COVID-19 Supplemental Paid Sick leave and Cal/OSHA exclusion pay), California employers may prefer to provide FFCRA leave in order to take advantage of the payroll tax credits available exclusively under the federal law.

If an employer does elect to make FFCRA leave available to employees, then the amount of leave available resets from 2020. So, employees who used any or all of their 2020 FFCRA leave would be entitled to new leave for 2021. Employees who did not use all of their 2020 FFCRA leave cannot carry it over into 2021 (except to the extent they were on a qualifying leave that started in 2020 and carried over into 2021).

If an employee was out of work in January or February 2021 for reasons that would qualify under the Supplemental Paid Sick Leave, do I have to go back and pay them for that time?

Yes…but only if they ask for it. SB 95, the law enacting COVID-19 Supplemental Paid Sick Leave, went into effect on March 29, 2021, but the paid leave is available for qualifying leaves retroactive to January 1, 2021.

That does not mean the employer has to unilaterally make retroactive payments. Rather, an employer’s obligation to make retroactive payments arises only if the employee makes an oral or written request. Once the employee makes the request, the employer has to make the retroactive payment on or before the payday for the next full pay period after the request.

Is the employee required to provide documentation to support COVID-19 Supplemental Paid Sick Leave eligibility?

No, says the Labor Commissioner. An employee is entitled to leave upon oral or written request, and an employer cannot condition leave or payment on medical certification or other documentation. On the other hand, if the employer has information indicating an employee was not truthful about the qualifying reason for the leave—e.g., “Bill says he needed to quarantine last week, but his social media account has pictures of him at the beach every day.”—then an employer could request documentation. (It’s always best to get legal counsel to advise on such issues.)

I paid an employee exclusion pay under Cal/OSHA back in February. Can I get any COVID-19 Supplemental Paid Sick Leave credit for that? If the employee requests CV-19 SPSL for that time, do I have to pay them twice?

You do not have to pay them twice. You can potentially claim a credit for that pay, but you have to act fast. For any qualifying leave taken in 2021 for which the employee was provided paid leave—for example, as Cal/OSHA exclusion pay or as a voluntary benefit, excluding vacation—the employer can credit that leave against the employee’s available COVID-19 Supplemental Paid Sick Leave, provided the leave was for a qualifying reason and either the employee was paid the applicable rate of pay or the employer makes a retroactive catch-up payment.

However, keep in mind that the employer is also obligated to advise each employee of the amount of available supplemental paid sick leave, either on a wage statement or a separate written notice provided on payday. So, to claim retroactive credit for any paid leave provided earlier this year, the employer probably needs to calculate that credit now so that the available leave reported to the employee reflects this deduction. In other words, you should not wait for the employee to take leave in the future before calculating any credit you intend to claim.

Legislation at the federal and state level this month changed many paid sick leave regulations for California employers.  California employers could be subject to at least five different paid sick leave laws spanning federal law, state law, state-regulations, and local government regulations.  As employers reopen in California, it is important to review the various paid sick leave requirements to understand which ones apply to your business to ensure compliance.

1. Families First Coronavirus Response Act (FFCRA)

The FFCRA enacted under the Trump administration on March 19, 2020 expired on December 31, 2020.  The Consolidated Appropriations Act of 2021 permitted employers to take a tax credit who continued to voluntarily provide paid FFCRA leave to employees through March 31, 2021.  The American Rescue Plan of 2021 passed on March 11, 2021, extended the payroll tax credits for qualifying leave that is voluntarily paid by employers through September 30, 2021.  The FFCRA and these extensions for the tax credits for the voluntary paid leave applies to employers with fewer than 500 employees.  The FFCRA does not require employers to provide paid sick leave in 2021, but employers who are voluntarily providing the paid sick leave for qualifying reasons are eligible for a tax credit for this paid leave.

2. 2021 California Supplemental Paid Sick Leave

Governor Newsom signed new legislation on March 19, 2021 requiring California employers to provide COVID-19 supplemental paid sick leave.  The new law applies to employers with more than 25 employees, expands the list of covered reasons for the paid leave from the old 2020 requirements, applies for all leave taken by employees in 2021 (upon verbal or written request by an employee, employers must pay for leave retroactively to January 1, 2021), must update and provide notice to employees on their pay stubs of the new amounts of supplemental paid sick leave the employee is entitled to at the end of the first full paid period following March 29, 2021, and there is a new posting requirement.

3. Cal/OSHA Emergency Temporary Standards (Cal/OSHA ETS)

On November 30, 2020, California’s Office of Administrative Law approved Cal/OSHA’s emergency standards setting forth new requirements for California employers. Under the new requirements, employers must develop a written COVID-19 prevention program, train employees, provide personal protective equipment to employees, provide certain information to employees, and abide by record keeping and new reporting requirements.  In addition, the Cal/OSHA ETS requires employers to provide “exclusion pay” to employees under certain circumstances.

4. Local County and City COVID-19 Paid Sick Leave Ordinances

Many local county and city governments have enacted their own COVID-19 paid sick leave requirements as well, including:

  • Los Angeles County:
    • Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
    • Applies retroactively to business starting on January 1, 2021.
    • [Update] LA County passed COVID-19 vaccine paid leave on May 18, 2021.  Read more about the ordinance here.
  • Los Angeles City: Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
  • Long Beach City: Reviewed every 90 days and still in force.
  • Oakland City: Extended until the end date of Oakland’s COVID-19 emergency declaration
  • City of Sacramento: Expires on March 31, 2021
  • San Francisco County and City: Both extended until April 12, 2021
  • City of San Jose: Expires on June 30, 2021
  • San Mateo County: Expires on May 1, 2021
  • City of Santa Rosa: Expires on March 31, 2021
  • Sonoma County: Expires June 30, 2021

5. California’s Healthy Workplaces, Healthy Families Act of 2014 and Local Paid Sick Leave Ordinances

California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, became effective on January 1, 2015.  The law requires employers of all sizes to provide 1 hour of paid sick leave for every 30 hours worked or another approved method.  Employer may cap the accrual of paid sick leave at 48 hours and cap the use of paid sick leave at 3 days or 24 hours, whichever is greater, within a 12-month period.

Some local governments also have their own paid sick leave requirements employers must comply with.  These requirements were in place pre-COVID-19.  Some examples of cities in Southern California with their own requirements include:

As written about previously, Governor Newsom signed new legislation on March 19, 2021 requiring California employers to provide COVID-19 supplemental paid sick leave.  California employers were required to provide California COVID-19 supplemental paid sick leave under an old law passed in 2020 that expired on December 31, 2020.  There are a few key differences between the old requirements and the new 2021 COVID-19 Supplemental Paid Sick Leave just enacted, and California employers need to beware of these new requirements.  Below are a few of the new key provisions of the 2021 COVID-19 Supplemental Paid Sick Leave:

2021 COVID-19 Supplemental Paid Sick Leave Requirements Apply to California Employers With More than 25 Employees.

The new 2021 COVID-19 supplemental paid sick leave requirements apply to employers with more than 25 employees.  The old California supplemental paid sick leave law applied to employers with 500 or more employees.

Expanded List of Covered Reasons.

Old COVID-19 SPSL – Qualifying Reasons for employees unable to work due to any of the following reasons: New 2021 COVID-19 SPSL – Qualifying Reasons for employees unable to work or telework due to any of the following reasons:
1. The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19. 1. The covered 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 covered employee is subject to more than one of the foregoing, the covered employee shall be 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.
2. The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19. 2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19. 3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to an order or guidelines or who has been advised to self-quarantine.
7. The covered 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.

Applies Retroactively to January 1, 2021.

The new law applies retroactively to January 1, 2021.  The Labor Commissioner’s FAQs explains:

The requirement to provide “retroactive” 2021 COVID-19 Supplemental Paid Sick Leave does not start until March 29, 2021. This “retroactive” payment is only required if the covered employee makes an oral or written request to be paid for leave that qualifies (as described above).

For example, if a covered employee had to take two hours off for a vaccine appointment on February 15, 2021, the employee can make an oral or written request to the employer to be paid for that time off in February, since it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave.  The oral or written request must be made on or after March 29, 2021. A request made before March 29 does not count.  If an employee is unable to make the request themselves or has difficulty locating an employer to provide proper notice, they may contact the Labor Commissioner’s Office, which may be able to provide assistance.

After the employee makes the request, the employer will have until the payday for the next full pay period to pay the “retroactive” 2021 COVID-19 Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2021 COVID-19 Supplemental Paid Sick leave hours remain available to the covered employee.

Employers Must Post New Poster.

The Labor Commissioner published the new 2021 COVID-19 Supplemental Paid Sick Leave required notice on its website.  Employers are required to post this notice in a location where employees can easily read it.  If employees do not visit a physical location, employers may distribute it electronically.