California and the Federal Government Have Revamped COVID-19 Leave Options

As employees are getting vaccinated and more folks are headed back to the office, it is important to make sure you are complying with the most recent set of COVID related leave laws. On March 11, 2021, the federal government passed the American Rescue Plan Act which renews and expands the FFCRA (Families First Coronavirus Response Act) on a voluntary basis. The FFCRA allows employers (fewer than 500 employees) to provide paid time off to employees for COVID-19 related reasons. The tax credits associated with the FFCRA have been extended as well.

In addition, on March 19, 2021, California passed a New Supplemental Paid Sick Leave for COVID-19. This act requires employers (employers of 26 or more employees) to provide employees with leave similar to the paid sick leave portion of the FFCRA, including for taking time off to get vaccinated.

Furthermore, on February 2, 2021, the City Council for the city of Santa Rosa voted to extend its emergency paid sick leave ordinance to mirror that of the FFCRA. Santa Rosa’s paid sick leave ordinance is applicable to all employers of any size within the city limits. Moreover, with the passing of the American Rescue Plan Act, the ordinance is also now effective through September 30, 2021.

EMERGENCY PAID SICK LEAVE

Leave Amount: Full-time employees are entitled to up to 80 hours of paid sick leave if the employee is unable to work (or telework) due to COVID-19 related reasons identified below. Part-time employees are entitled to a pro-rata portion of leave defined by statute.[1] This is in addition to sick leave already provided by the employer.

Qualifying Reasons: Qualifying reasons for this paid sick leave are:

Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state, or local orders or guidelines.

Employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19.

Employee is attending an appointment to receive a COVID-19 vaccine.

Employee is experiencing COVID-19 vaccine-related symptoms that prevents the employee from being able to work or telework.

Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.

Employee is caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19.

The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Pay Available for Qualified Reasons: The following pay is available to the employee.

Paid sick leave must be paid at 100% of the employee's regular rate of pay up to 80 hours.

Weekly payments are based on the employees work schedule.

Payments are capped at $511 per day and $5,110 total.

Other Available Paid Leave: Employees are not required to use other types of paid leave provided by the employer before the employee uses the paid sick time available under these laws. Employees are permitted to use other sick, or vacation pay for these purposes if they choose to do so.

If the employer has adopted a separate COVID-19 sick leave bank for employees to use for these qualified reasons, the employer may credit any time given between January 1 and March 29, 2021, against the California Paid Sick Leave mandate. This includes employers who have provided such leave in compliance with the Santa Rosa City Ordinance, or any other local ordinance requiring such.

Similarly, if an employer has opted to continue providing paid time off under the FFCRA, any time given in 2021 may be credited toward the California Paid Sick Leave mandate.

Effective Date: Sick leave under the FFCRA renews on April 1, 2021. The California paid-sick leave provisions take effect January 1, 2021 and expire on September 30, 2021.

Requests for Retroactive Pay by Employees: Employees may request the employer pay for time taken between January 1, 2021 and March 29, 2021. Once requested, the employer must pay for any qualifying time taken, or pay any difference between paid time given and the California Paid Sick Leave pay calculation by the next payroll date.

Pay Statement Reporting: Employers must report the amount of available California Paid Sick Leave to employees on their pay statements or on a separate report to employees issued with payroll. The identification must be separate from any other leave available.

For employees who work inconsistent shifts, the employer may make a best estimate of the number of hours a part-time employee is entitled to receive by reporting such calculation and identifying the amount is “variable.” When the part-time employee then requests leave, the employer must calculate the amount of time available to the employee and report that information to the employee.

Interaction with Cal-OSHA Mandated Paid Leave: The California Mandatory Paid Sick Leave Act is payable first before the employer is required to pay any benefits owed to employees under the recent Cal/OSHA Emergency Temporary Standards (“ETS”). Under the ETS, employees must be paid if they are out of work due to an exposure to COVID-19 at work.

EXPANDED FMLA UNDER THE FFCRA 

Expansion: The new Emergency Family and Medical Leave Expansion Act is similar to the prior Emergency FMLA expansion from 2020 but goes further to expand the reasons for leave and the amount of leave available. This leave allows eligible employees who cannot work (or telework) because of any of the 7 reasons stated above, to take up to 12 additional weeks off in addition to the two weeks described above. This is part of the expanded FFCRA and therefore, employers may voluntarily opt to grant this leave.

Eligibility: All employees who have been on the payroll for at least 30 calendar days are eligible.

Duration: The duration of the leave is up to 12 weeks in a 12-month period. If the employee has taken any FMLA leave, or Emergency FMLA leave under the prior COVID-19 laws, then such leave will count against the amount of available leave when taken in the same 12-month period. If an employee has already taken all 12 weeks of FMLA leave in a 12-month period, then no leave is available until sufficient time has passed. 

Paid Leave: Employees receive two-thirds of their regular rate of pay based on the number of hours the employee would otherwise have been scheduled to work. These paid-family-leave benefits are capped at $200 a day and $12,000 total. Employees may choose to supplement their pay by using accrued sick leave or vacation during the time off.

Effective Dates: The expanded FMLA provisions take effect April 1, 2021 and expire on September 30, 2021.

SUPPORTING DOCUMENTATION, ENFORCEMENT & RETALIATION 

Under both laws, the employer may ask for documentation to support the leave. Documentation is required in order to maintain payroll tax credit eligibility under ARPA. Furthermore, documentation may be requested in response to California’s Supplemental Paid Sick Leave law when the employer has other information indicating that the requesting employee is not requesting leave for a valid purpose.

If an employer refuses to provide the California paid sick leave, an employee may file an action in court. The court can award attorney’s fees if an employee prevails in court. Employers cannot retaliate against employees for requesting or taking paid sick leave or Expanded FMLA leave if voluntarily offered to employees.

TO DO

Send notice to employees: Form notices are available on the Department of Industrial Relations’ website: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf If you are opting to offer FFCRA leave, you should include notice of those benefits as part of the same communication.

Contact your payroll provider to work on getting the separate bank reflected on employee payroll statements

Prepare for workflow changes, especially if you opt in to the FFCRA, as an employee could be out for up to 14 weeks due to a qualifying reason.

If you have any legal questions or concerns, please call Dawn Ross, Samantha Pungprakearti, or Justin Hein at Carle, Mackie, Power & Ross LLP at (707) 526-4200.

[1] Part‐time employees are eligible for variable leave amounts based upon hours worked. A worker who has a normal weekly schedule is entitled to paid leave hours equaling the total number of hours they are scheduled to work over two weeks. An individual who works a variable number of hours is eligible for leave time equal to 14 times the average number of hours the individual worked each day in the six months before the leave date. The calculation for a worker employed less than six months is generally made over the entire period of employment.