New California Law Provides Supplemental Paid Sick Leave for COVID-19 Affected Workers

attorney Sue m. Bendavid

Sue M. Bendavid | Shareholder

September 21, 2020
Employer Attorney David Jones

David G. Jones | Shareholder

September 21, 2020

Governor Gavin Newsom recently approved a significant supplemental paid sick leave law which became effective September 19, 2020.

The law, codified as Labor Code Section 248.1, requires certain larger employers to provide up to 80 additional hours of COVID-19 related paid sick leave “to all employees who leave their homes or place of residence to perform work and who work for employers that have 500 or more employees nationwide” according to the California Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”).

The DLSE released a comprehensive set of Frequently Asked Questions on the new Supplemental Paid Sick Leave law providing answers on various gray areas and questions raised by the new legislation.

The new law was passed in part to fill the gap in the federal Families First Coronavirus Response Act (“FFCRA”), which does not apply to all employees or to businesses with 500 or more employees.

Covered Employers

The new Supplemental Paid Sick Leave law applies to private sector “hiring entities” with greater than 500 employees nationwide.

The law also covers “hiring entities” that employ health care providers and emergency responders who are excluded from paid sick leave under the FFCRA.

Covered Employees

While much of the recent analysis of the new law focuses on employees who work for food service related employers, first responders, and medical personnel, the new law applies to a much broader group of employees.

Unlike the FFCRA, any person employed by a private employer (“hiring entity”) with 500 or more employees nationwide is covered. Thus, previously ineligible employees are now eligible to receive COVID-19 related supplemental paid sick leave, including health care employees and emergency responders.

 For employers with 500 or more employees, Labor Code section 248 applies to all food sector workers who perform work related to the hiring entity, whether the workers are considered employees or independent contractors. By contrast, independent contractors for non-food sectors are not eligible for Supplemental Paid Sick Leave.

Qualifying Reasons for Leave

To be eligible for Supplemental Paid Sick Leave, a worker must be unable to work due to one of the following reasons:

  1. The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  2. The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19
  3. The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

The DLSE clarified that these eligible situations apply only where “a quarantine order, isolation order, or a medical professional recommends that a worker stay home, or if a hiring entity requires the worker to stay home.”  The existence of a general stay at home order will not suffice to trigger Supplemental Paid Sick Leave for workers who are more specifically authorized to work.

Effective Period

The time limited law went into effect September 19, 2020 and is set to expire on December 31, 2020, unless extended.

Amount of Paid Leave

Full time employees are entitled to 80 hours of Paid Supplemental Sick Leave. A full time employee is a person who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken. A more complicated calculation applies to part-time and newer employees and it is recommended that employers consult counsel to determine entitlement in these scenarios.

Wage Payment Amount

The worker is entitled to the highest of the following:

  • The worker’s regular rate of pay for the last pay period
  • The State minimum wage
  • The applicable local minimum wage

Employers are not required to pay more than $511 per day or $5,110 in the aggregate to any individual worker for COVID-19 Supplemental Paid Sick Leave.

Interaction with Other Leave Laws

While employers may be tempted to require employees to use other paid or unpaid time before providing Supplemental Paid Sick Leave, such practices are prohibited. Employers may not mandate employee advance usage of any other paid or unpaid leave, paid time off, or vacation time provided by the employer before the covered worker uses Supplemental Paid Sick Leave. Labor Code Section 248.1 (b)(4).

All accrued hours of Supplemental Paid Sick Leave are in addition to any paid sick leave that an employee may be entitled to under California’s previously enacted paid sick leave law (Labor Code Section 246) or employer policy.

Model Notices Required

California law requires conspicuous posting of the applicable poster in the workplace and electronic distribution to employees.

The DLSE has developed a standardized model COVID-19 Supplemental Paid Sick Leave Notice/Poster for the broader group of Non-Food Sector Employees. Employers should utilize this notice to meet their legal obligations under the new law.

Food sector employers can utilize the industry specific notice developed by the DLSE.

Enforcement

The DLSE is the state agency charged with enforcement. The DLSE can independently investigate violations of the new law.

Implications and Concerns for Employers

Given the rapidly changing face of COVID-19 employment laws and the short window for immediate compliance, every employer should consult the DLSE web page for guidance and experienced employment counsel to successfully navigate these laws and stay in compliance.

Beware Requesting Medical Certification

Employers may not deny Supplemental Paid Sick Leave due to the lack of certification from a health care provider. A worker is entitled to take Supplemental Paid Sick Leave immediately upon request and the leave cannot be conditioned on medical certification.

The Trap Of Non-Compliant Wage Statements

Critically, Section 248.1 expressly requires that, effective the first full pay period after September 19, 2020, employers provide employees with written notice concerning the amount of available Paid Supplemental Sick Leave in an employee’s itemized wage statement or in a separate written document. This means that covered employers must act immediately to come into compliance on their wage statements and should be contacting their payroll providers to avoid violation of the new law.

These and other requirements concerning wage statement compliance and the legality of requesting substantiating documentation present traps for the unwary employer and should provide the impetus for consultation with employment counsel.

Sue M. Bendavid and David G. Jones are employment defense attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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