By Renne Public Law Group (RPLG) Of Counsel Jenica Maldonado
Effective March 29, 2021, California’s private and public sector employers with more than 25 employees are subject to a new, expansive COVID-19 supplemental paid leave requirement for COVID-related leave taken between January 1 and September 30 of this year. The law applies to employees who are otherwise subject to collective bargaining agreements and has specific terms relating to firefighters. The text of the bill is here. A summary of the law’s key terms is below.
The law applies to all employers, public and private, in California with more than 25 employees. The law applies regardless of whether employees are also covered by a collective bargaining agreement. The law does not apply to independent contractors.
Amount of Leave for Full-Time Versus Part-Time Employees
For full-time employees (those scheduled to work 40 hours or more per week), the law requires employers to provide 80 hours of COVID-19 supplemental paid sick leave.
For part-time employees, the amount of leave to which they are entitled is based on their work schedule, work history, and specific formulas provided for in the statute:
- If the employee has a normal work schedule, then the employee’s leave benefit amount is the total number of hours that the employee is scheduled to work over a two-week period;
- If the employee has a variable schedule, then the employee’s leave benefit amount is 14 times the average number of hours the employee worked each day for the employer in the six months preceding the date that the employee took COVID-19 supplemental paid sick leave;
- If the employee has a variable schedule but has only worked for the employer for 14 days or less, then the employee’s leave benefit amount is the total number of hours that the employee has worked for the employer since their first day of work.
Amount of Leave for Firefighters
The law includes specific provisions for firefighters. The law provides that if a firefighter was scheduled to work more than 80 hours in the two weeks before they take COVID-19 supplemental paid leave, they are entitled to take COVID-19 supplemental paid leave for the same amount of time that they were scheduled to work during the two weeks preceding their leave. Based on 24-hour scheduling, the number of hours worked in a two-week period for firefighters typically exceeds 100 hours.
Qualifying Reasons for COVID-19 Supplemental Paid Leave
An employee is qualified to take COVID-19 supplemental paid leave if they are unable to work or telework because they:
- are subject to a quarantine or isolation period related to COVID-19 (and may use such leave for the minimum quarantine period or the longest minimum isolation period under federal, state, or local guidelines);
- have been advised to self-quarantine by a health care provider;
- are attending a vaccine appointment;
- are symptomatic for COVID-19 and are seeking a medical diagnosis;
- are experiencing symptoms after receiving the vaccine;
- are caring for a qualified family member who is subject to a quarantine or isolation order;
- are caring for a child whose school or place of care is closed or otherwise unavailable because of COVID-19.
An employer cannot deny or condition a leave request based solely on a lack of certification from a health care provider. The employee is entitled to use the leave immediately upon their oral or written request. If, based on additional information, an employer believes the employee may not be using the leave for a valid purpose, the employer may request medical certification. Employers also cannot require a qualified employee to use any other paid or unpaid leave, paid time off or vacation before they may use the COVID-19 supplemental paid leave or in lieu of the benefit.
Rate of Pay & Cap on Benefit
For exempt employees, COVID-19 supplemental paid sick leave is paid at the rate that the employer calculates wages for other forms of paid sick leave.
For non-exempt employees, COVID-19 supplemental paid sick leave is paid at the employee’s highest rate of pay, based generally upon either their rate of pay for the workweek in which they use COVID-19 leave, their total wages over a 90-day period divided by hours worked, or based on state or local minimum wage.
Employers are not required to pay more than $511 per day and $5110 in the aggregate between January 1, 2021 and September 30, 2021 for COVID-19 supplemental paid leave per employee. If the federal government enacts additional COVID-19 paid sick leave legislation, this cap could change. Once an employee has reached this maximum amount, an employer may permit an employee to use other forms of paid leave during an employee’s leave of absence.
The law is retroactive until January 1, 2021. If a covered employee took a qualifying unpaid leave between January 1, 2021 and March 28, 2021, then they are now entitled to payment for the time off. If the qualifying leave was paid, but not at the pay rate to which an employee is entitled under the statute, then the employee is entitled, upon request, to a retroactive payment for the difference. If the qualifying leave was paid using other accrued time off, then the employee is entitled, upon request, to replenishment of such time to their leave bank. All compensated retroactive leave may be deducted from an employee’s total available leave under the statute.
The law requires a separate line item for available COVID-19 supplemental paid sick leave on employee’s wage statements. (The requirement is not subject to enforcement until the next full pay period following March 29, 2021.)
Labor Commission Posting & FAQ
Effective March 26, 2021, employers must post a model notice prepared by the Labor Commission in their workplaces. The notice can be found here. The Labor Commissioner has also issued an FAQ regarding the law, which can be found here.
RPLG practices throughout California, advising and advocating for public agencies, nonprofit entities, individuals and private entities in need of effective, responsive and creative legal solutions.