26 or More Employees? Listen Up! COVID Paid Sick Leave Now Required in CA
California recently expanded mandatory COVID-related sick leave pay to all employers with 26 or more employees. The new COVID-19 Supplemental Paid Sick Leave law (SPSL), SB 95, is effective March 29th, 2021 through September 30th, 2021. After March 29th, the employer must make SPSL available to employees immediately upon verbal or written request.
The COVID Supplemental Paid Sick Leave law is retroactive to January 1st, 2021 and employees can request payment for prior unpaid leave due to a reason covered under SPSL. See below for more details on the retroactivity of the law.
Below are the important points to be aware of. More information can be found on the Department of Industrial Relations website.
Employees are eligible for a new allotment of SPSL as follows:
- Full-time employees are entitled to 80 hours of SPSL, including those who work, on average, at least 40 hours per week in the two weeks preceding the date that SPSL was needed.
- Part-time employees working a normal weekly schedule are entitled to SPSL in an amount equal to the number of hours scheduled to be worked over two weeks.
- Part-time employees working a variable number of hours (not a fixed weekly schedule) are entitled to SPSL equal to 14 times the average number of hours worked each day in the six months preceding the date that SPSL was required.
Reasons Employees Can Take SPSL
- The SPSL does not expand or require payment for the 12 weeks of Emergency FMLA included under the Families First Coronavirus Response Act (FFCRA).
- The SPSL requires sick pay for the following reasons if the employee can not work or telework:
Caring for Themselves
- The employee is subject to a quarantine or isolation order due to COVID. This must be a specific order relating to the employees’ circumstances, not a general stay-at-home order issued by the health department for the community. For example, an order of a local health department that directs individuals who live with someone who has COVID to quarantine themselves would satisfy the eligibility requirement for taking SPSL.
- The employee is experiencing symptoms of COVID and is seeking a medical diagnosis.
Caring for a Family Member
- The employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID or has been advised by a healthcare provider to quarantine due to COVID.
- The employee is caring for a child whose school or place of care is closed or unavailable due to COVID on their premises.
- The employee is attending a vaccine appointment.
- The employee is experiencing vaccine-related symptoms.
Paying for the Sick Leave
- Employees can not be required to use up other sick leave, vacation or paid time off prior to being paid for SPSL.
- For each hour of SPSL that an employee is entitled to receive, the employee must be paid the highest of the following:
i. The employee’s regular rate of pay for the workweek in which the leave is taken
ii. A rate calculated by dividing a non-exempt employee’s total wages, not including overtime pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment
iii. The State minimum wage
iv. The local minimum wage
- The maximum sick leave pay is $511 per day or $5110 in total.
- Employers who are eligible can take Federal tax credits for voluntary FFCRA paid sick leave if the reason under SPSL for the leave meets FFCRA requirements. The vaccine-related reasons are now covered under FFCRA due to the American Rescue Plan Act which will be effective on April 1st, 2021.
- Note that caring for a family member under FFCRA is limited to $200 per day therefore the tax credit will not be available for the full $511 per day required under SPSL.
- Employers cannot deny paid sick leave solely on the lack of certification from a healthcare provider.
- It may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the employee is not requesting the sick leave pay for a valid reason. This should be handled very carefully as the reasonableness of the action is going to be heavily scrutinized.
Retroactive Paid Sick Leave
- Employers should review any unpaid leave between January 1st, 2021 and March 29, 2021, to determine whether it would qualify for SPSL.
- If so, payment of SPSL will likely be required for the time spent on unpaid leave. Retroactive payment must be made after the employee requests, verbally or in writing, a retroactive payment for the time off if it meets the SPSL requirements
- Any retroactively paid sick leave would count toward an employee’s paid sick leave allotment under SPSL.
Notification to Employees
- Employers must post or distribute electronically this notice which explains the new requirements to employees.
- Employers must provide written notice of the amount of SPSL available to an employee either on an itemized wage statement or in a separate writing provided on their designated paydays. Any used SPSL must be reflected as a separate line item on the employees’ wage statements.
How SDHRC Can Help
Confused?? We understand your confusion. We can help navigate this process for you so you can stay in compliance with the new law. COVID-19 has caused the implementation of countless guidelines and regulations for businesses of all sizes. Our COVID-19 Resources page is dedicated to sharing the latest information surrounding COVID-19. For assistance from our HR experts unique to your business contact us today.
About the Author
Traci Hagan, “Treasure Trove”
Traci is an HR Consultant who has been with SDHRC for over 2 years but has over 32 years of experience in employee relations, conflict resolution benefits administration, training and development, workers’ comp and staffing! Traci is also a Professor who enjoys traveling and spending time with her 16-year-old “puppy”.