Nearly three months after the expiration of California's first COVID-19 Supplemental Paid Sick Leave Law, California has adopted a new entitlement to Supplemental Paid Sick Leave (SPSL) for employees dealing with COVID-19 issues. The law, which is codified in Labor Code sections 248.2 and 248.3, goes into effect on March 29, 2021, and is retroactive to January 1, 2021.
Detailed guidance can be found at 2021 COVID-19 Supplemental Paid Sick Leave FAQs (ca.gov).
What Employers Are Covered?All employers with more than 25 employees are covered, including those with collective bargaining agreements.
Which Employees Are Covered?
All California employees who work for a covered employer are eligible for SPSL if they cannot work onsite or remotely, due to the reasons listed in the next section below. Unlike the prior 2020 California supplemental COVID paid sick leave law, which did not apply to employees who worked from home, the new SPSL applies to workers who work onsite for an employer as well as from home. The new SPSL also expressly applies to providers of "in-home supportive service providers and personal waiver care service providers."
Correctly classified independent contractors are not "employees" covered by SPSL.
When Is an Employee Entitled to SPSL?
A covered employee is entitled to SPSL if the employee is unable to work or telework because the employee is:
- Subject to a COVID-19 quarantine or isolation period 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;
- Advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- Attending an appointment to receive a COVID-19 vaccine;
- Experiencing symptoms related to a COVID-19 vaccine that prevent the employee from working;
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Caring for a "family member" (defined below) who is subject to an order or guidelines or who has been advised to self-quarantine; and
- Caring for a "child" (defined below), whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
"Family member" includes all of the following:
- Child (defined as a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis; this definition applies regardless of age or dependency status);
- Biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child;
- Registered domestic partner;
- Grandchild; or
Are There Notice and Recordkeeping Requirements?
Covered employers must post or distribute electronically the required poster.
Covered employers are obligated to inform covered employees of the amount of SPSL available for their use either by including it on the employees' wage statements or paystubs, or in a separate written notice provided on paydays. This requirement is consistent with, but in addition to, the requirement in the California sick leave law to provide notice to employees of regular paid sick leave available for their use.
Employers should consult with legal counsel with any questions about providing notice of available SPSL for variable-scheduled part-time covered employees.
SPSL records must be kept for three years.
What Time Period Is Covered by SPSL?
The time period covered by the SPSL is January 1, 2021 through September 30, 2021. Although the law takes effect on March 29, 2021, the requirement to provide 2021 SPSL is retroactive to January 1, 2021.
- Covered employees who took qualifying leave between January 1, 2021 and March 28, 2021, can request payment orally or in writing for eligible leave.
- If the law expires while a covered employee is taking SPSL, the employee can finish taking the amount of 2021 SPSL they are entitled to receive.
What Triggers an Employer's Obligation to Pay SPSL?
The law requires that an employee request leave—either orally or in writing.
- Leave taken before March 29, 2021: If the covered employee took leave between January 1, 2021 and March 28, 2021, for one of the qualifying reasons and was not paid for this leave in the amount required (see below), the employee has the right to ask the employer for a retroactive payment equal to the amount required.
After the employee makes the request, the employer will have until the payday for the next full pay period to pay the retroactive SPSL.
- Absent an employee request for retroactive payment, employers are not required to conduct an audit of potentially qualifying leave taken before March 29, 2021. Employers should consult with counsel when developing strategies concerning retroactive application.
Can An Employer Request Medical Certification to Substantiate the Leave?
No. A covered employee is entitled to take SPSL immediately upon the covered employee's oral or written request, with or without medical certification. That said, it may be reasonable in certain circumstances to ask for substantiating documentation if the employer has information calling into question the validity of the SPSL request.
The FAQs provide the following example: "if a covered employee informs an employer that the covered employee is subject to a local quarantine order or recommendation, has to stay home, and qualifies for 2021 COVID-19 supplemental paid sick leave, but the employer subsequently learns that the covered employee was out at a park, the employer could reasonably request documentation."
How Many Hours of SPSL Is a Covered Employee Entitled To?
Full-time employees: Employees who were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the covered employee takes SPSL are entitled to 80 hours of SPSL.1
- With Variable Schedules Who Have Worked For More Than 14 Days: The covered employee may take 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took SPSL.2
- ⚬ If the employee has worked for the employer for fewer than six months, this calculation would be done based on the entire period of such employment.
- ⚬ If the variable schedule calculation results in an average work schedule of at least 40 hours per week, the employee would be considered full-time and entitled to 80 hours of leave.
- With Variable Schedules Who Have Worked For Fewer Than 14 Days: The covered employee is entitled to the number of hours they have worked in the preceding two weeks.
What Is the Rate of Pay for an Employee on SPSL?
Nonexempt employees: The highest of the following:
- The regular rate of pay for the workweek in which the covered employee uses SPSL, whether or not the employee actually works overtime in that workweek.
- The covered employee's total wages, not including overtime premium pay, divided by the employee's total hours worked in the full pay periods of the prior 90 days of employment.
- The state minimum wage.
- The local minimum wage to which the covered employee is entitled.
Exempt employees: The amount is calculated in the same manner as the employer calculates wages for other forms of paid leave time.
** Notwithstanding the foregoing, a covered employer is not required to pay more than $511 per day or $5,110 in the aggregate to a covered employee.
How Does SPSL Interface With Other Sick Leave Obligations?
COVID-19 sick leave, provided pursuant to a local ordinance for a reason listed and paid at least the same rate as SPSL, can be credited towards SPSL. For example, if an employer provides a full-time covered employee 40 hours of COVID‑19-related supplemental paid sick leave pursuant to the Los Angeles ordinance, those 40 hours would also count toward the employer's obligations under the SPSL.
SPSL prohibits employers from requiring a covered employee to use other paid or unpaid leave, paid time off, or vacation concurrently with or before the employee uses SPSL, except in congruence with Cal-OSHA's ETS exclusion pay provision requiring that an employer maintain an employee's earnings and benefits if they must quarantine due to a workplace exposure. In that circumstance, an employer can first apply available SPSL toward the so-called exclusion pay. The covered employee may utilize other available paid leave in order to be paid what they would normally earn.
How Is the Law Enforced?
The Labor Commissioner enforces the law, and is authorized to sue if necessary.
1 Active firefighters may be entitled to additional leave.
2 Here is an example using a 6-month period that contains a total of 182 days (26 weeks):
Total Number of Hours Worked During 6-Month Period: 520 hours
Total Number of Days in 6-Month Period: 182 days
Average Number of Hours Worked Each Day in 6-Month Period: 520 hours ÷ 182 days = 2.857 hours
2021 COVID-19 Supplemental Paid Sick Leave Entitlement: 2.857 x 14 = 40 hours
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.