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.
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.