Detailed, Retroactive Requirements for Employers with 26 or More on Payroll

Effective March 29, 2021, California Labor Code 248.2’s “COVID-19 Supplemental Paid Sick Leave” law (SPSL) requires employers with 26 or more total employees, i.e., nationwide, to provide up to 80 hours of supplemental paid sick leave benefits to eligible/covered California workers through September 30, 2021.  The new law also covers providers of in-home supportive services (see California Labor Code 248.3).

SPSL revives and significantly expands last year’s COVID-19 supplemental paid sick leave law (Assembly Bill [AB]1867), which applied mostly to food sector workers and employers with over 500 employees.

As explained in the Labor Commissioner’s FAQs, the new SPSL includes:

Eligibility

A covered employee must be unable to work or telework for any of the following reasons:

• Caring for yourself: The employee is subject to a government-directed COVID-19 quarantine or isolation period, has been advised by a healthcare provider to quarantine, or is experiencing COVID-19 symptoms and seeking a medical diagnosis; or

• Caring for a family member: The employee is caring for a family member subject to COVID-19 quarantine or isolation or has been medically advised to do so, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19; or

• Vaccine–related: The covered employee is attending a vaccine appointment or is experiencing vaccine-related symptoms.

Employers may not request confirming medical certification for any of these grounds.

Pay Amounts, Rates and Timing

• Covered, eligible employees may take up to 80 hours of COVID-related paid sick leave (not to exceed $511 per day and $5,110 in total) immediately upon an oral or written request to their employer.

• Part-time employees with a regular weekly schedule must be paid the number of hours normally scheduled to work over two weeks.

• Part-time employees with a variable schedule must be paid 14 times the average number of hours worked per day over the past six months.

• Non-exempt employees must be paid the highest of: ● employee’s pay rate for the workweek in which leave is taken; ● state minimum wage; ● local minimum wage: ● or average hourly pay for the preceding 90 days (excluding overtime pay).

• Exempt employees must receive the same rate of pay as wages calculated for other paid leave time.

• Paid leave taken in 2020 under AB 1867 or the federal Families First Coronavirus Response Act (FFCRA) does not count towards the new SPSL leave bank.

Retroactivity:  Employers must make retroactive payments for prior leave taken under any of the above eligible reasons from January 1, 2021 upon the covered employee’s oral or written request.  Retroactive payments must be made “on or before the payday for the next full pay period” after receiving the request.

Model Notice/ Wage Statement:

• Employers must provide written notice to all covered employees.  The Labor Commissioner’s model notice in English and Spanish may be used for this purpose.

• Itemized wage statements must list the amount of available SPSL separately from regular paid sick leave.  See FAQ No.20 for more information.

Leave Interactions:

• Employers may not require a covered employee to use other paid or unpaid leave before using SPSL.

• However, employers may require employees to first exhaust their SPSL bank before paying COVID-19 related exclusion pay under Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS). See, Stay-Away “Exclusion” Pay Required Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021).

• Employers may also credit any paid leave (except for regular non-COVID-related California paid sick leave) taken by a covered employee between January 1, 2021 and March 28, 2021 for any of the above eligibility reasons.

Prohibited Retaliation/Discrimination: Retaliation or discrimination against a covered employee requesting or using SPSL is strictly prohibited.

California employers should review new section 248.2 and the accompanying FAQs to confirm compliance steps, including closely coordinating with payroll companies, downloading and distributing the model notices, and training managers on the new law.

See also:

• Pandemic Leave 2.0 – Feds Promote Expanded Paid Leave with Tax Credits, Through September 30, 2021 (March 25, 2021)
• One Certain Constant: Change – New Retroactive Paid Pandemic Leave Requirement(March 19, 2021)
• What’s New in 2021: Paid Pandemic Leave in the New Year – Some Benefits Optional, Some Mandatory (January 15, 2021)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
April 9, 2021