The purpose of this new Covid-19 Supplemental Paid Sick
Leave law (“SPSL” or “New Law”) is to “eliminate coverage gaps to ensure every
employee has access to paid sick days if they are exposed or test positive to
COVID-19 for 2020”. Specifically, SPSL
is intended to close the gaps between federally mandated paid COVID-19 related
sick days (i.e. the FFCRA Emergency Paid Sick Leave) and the Governor’s
previous Executive Order that only provided paid sick leave for food sector
workers. The New Law implicates all private employers with over 500 employees,
as well as public and private employers of first responders and health care
employees who opted not to provide leave under the federal law.
Below is a summary of some of the key provisions of the New
Law.
When Impacted Employers Have to Provide SPSL:
Employees who must leave their home to perform work are
entitled to SPSL if they are unable to work when they are: (1) subject to a
federal, state, or local quarantine or isolation order related to Covid-19; (2)
advised by a health care provider to self-quarantine or self-isolate due to
concerns related to Covid-19; or (3) prohibited from working by the employer
due to health concerns related to the potential transmission of Covid-19.
Employer Pay Obligations Under SPSL:
Employees are entitled to SPSL based on their regular
schedules as follows:
·
For employees who work “full time” and were
scheduled to work or did work on average at least 40 hours per week in the two
weeks preceding the date of taking this leave, 80 hours (except for certain
firefighters);
·
For employees with a normal weekly schedule, the
total number of hours the employee is normally scheduled to work over two
weeks;
·
For employees who work a variable number of
hours, 14 times the average number of hours the employee worked each day in the
six months preceding the date the employee took SPSL; or
·
For employees who work a variable number of
hours and have worked for a period of 14 or fewer days, the total number of
hours the employee has worked for that employer.
The law permits the employee to determine how many hours of SPSL
to use, and requires the employer to make SPSL available for immediate use upon
the employee’s oral or written request.
SPSL must be paid at an hourly rate of the highest of: (1)
the employee’s regular rate of pay for the last pay period (including amounts
subject to any applicable collective bargaining agreement); (2) state minimum
wage; or (3) local minimum wage. However, like the Emergency Paid Sick Leave
provided under FFCRA, employers are not required to pay any more than $511 per
day and $5,110 total to an employee for SPSL.
The law prohibits employers from requiring an employee to
use any other paid or unpaid leave, paid time off, or vacation time before SPSL
or in lieu of SPSL, and also serves as additional leave on top of any paid sick
leave that may already be available to employees under Labor Code Section 246.
Impact of Previously Provided Covid-19 Paid Sick Leavfe
by Employers:
Where an employer previously provided Covid-19 related sick leave,
but did not pay it at the rates required under the New Law, SPSL expressly
authorizes an employer to retroactively provide supplemental pay to that
covered worker in an amount equal to or greater than that required under the New
Law, rather than providing additional leave time.
Also, if an employer already provides or provided employees
with a supplemental benefit, such as supplemental paid leave, that is payable
for the Covid-19 reasons identified in the New Law, then the employer may count
the hours of that other paid benefit or leave toward the total number of hours
of SPSL that it is required to provide under this New Law.
Wage Statement Obligations:
Employers must update their wage statements to provide
notice of the amount of paid sick leave available under this New Law, and could
be subject to liability for failure to do so starting with the pay period
following the law’s September 9, 2020 enactment.
Enforcement and Notice Requirements:
The New Law authorizes the Labor Commissioner to cite
employers for their failure to provide SPSL, which the Governor states is “a
critical enforcement tool that will promote safety for employees and customers
alike.” In addition, the Labor Commissioner must make a model notice available
by September 16, 2020 for use by employers.
The foregoing provisions related to SPSL are effective until
the later of December 31, 2020, or expiration of any federal extension of the
Families First Coronavirus Response Act.
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This publication is general in nature and is not intended to
replace professional legal advice. Questions regarding specific matters or
circumstances should be discussed with legal counsel. |
