California Expands Mandate for COVID-19 Paid Sick Leave Retroactive to January 1, 2021
On March 29, 2021, California’s newest COVID-19-related legislation requires all employers with 25 or more employees to provide California employees up to 80 hours of COVID-19 paid sick leave. This new law requires paid sick leave in addition to other mandated paid sick leave, to certain COVID-19 impacted employees who are not able to work or telework.
This emergency legislation is currently set to expire on September 30, 2021, but carries notice requirements, record keeping, and wage statement changes, as well as additional paid leave that may be requested by employees retroactively to January 1, 2021. While this appears similar to the COVID-19 Supplemental Paid Sick Leave law that was in effect in 2020, it applies to a much wider swath of employers and the paid sick leave requirements are in addition to any paid sick leave and employer-provided under the now-expired COVID-19 Supplemental Paid Sick Leave law.
The Department of Industrial Relations (DIR) published an extensive Q&A, including the complicated formulas used to determine how to pay the 2021 COVID-19 Supplemental Paid Sick Leave.
In addition, the DIR published a mandatory poster for posting or circulation electronically to employees.
Employees qualify for 2021 COVID-19 Supplemental Paid Sick Leave if they are not able to work or work remotely because they need to (1) care for themselves due to quarantine, isolation, COVID-19 symptoms or they are seeking a medical diagnosis, (2) care for family members subject to quarantine or isolation, (3) care for a child due to COVID-19 school or childcare closures, or (4) attend vaccine appointments or encounter vaccine-related symptoms. General “stay at home orders” do not qualify for 2021 COVID-19 Supplemental Paid Sick Leave.
The retroactivity measure will, no doubt, create confusion. Given the short time in which to pay employees the retroactive pay and provide an accurate wage statement (or other writing informing employees of their available COVID-19 supplemental paid sick leave), employers should consult with counsel immediately for questions regarding compliance. Covered employees that took leave between January 1, 2021 and March 28, 2021, for a “qualifying reason” have the right to ask their employer for a “retroactive” payment. The employer must pay the “retroactive” 2021 COVID-19 Supplemental Paid Sick Leave by the next payday for the next full pay period and provide an accurate wage statement (or separate writing) of how many 2021 COVID-19 Supplemental Paid Sick leave hours remain available to the covered employee. The DIR directs that if “a covered employee had to take two hours off for a vaccine appointment on February 15, 2021, the employee can make an oral or written request to the employer to be paid for that time off in February, since it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave. The oral or written request must be made on or after March 29, 2021. A request made before March 29 does not count.”
Paid leave under this new law is available upon an oral or written request by qualifying employees.
The compensation rate for a nonexempt covered employee is to be the highest of the covered employee’s regular rate of pay for the pay period in which the supplemental paid sick leave is taken, the state minimum wage, or the local minimum wage to which the covered employee is entitled, a formula based on the employee’s total wages divided by regular (but not overtime) hours worked in the preceding 90 day period, up to $511/day or a total of $5,110. Calculations for part-time employees are even more complicated, examples and details are included in the DIR’s FAQ. Consult with counsel to ensure that calculations are correctly made. Further, unlike Cal/OSHA’s Emergency Regulations, employers cannot require employees to use SDI to set off in lieu of 2021 COVID-19 Supplemental Paid Sick Leave. However, 2021 COVID-19 Supplemental Paid Sick Leave should count as “exclusion pay” required by Cal/OSHA’s Emergency Regulations when an employee is excluded from working due to potential COVID-19 exposure in the workplace. A covered employee may apply, moreover, for SDI after taking the 2021 COVID-19 Supplemental Paid Sick Leave.
Employers should act promptly to ensure that they are ready for requests for retroactive and future 2021 COVID-19 Supplemental Paid Sick Leave to minimize the need for last-minute calculations and wage statement errors.