COVID PAID LEAVE

COVID-19

Paid Sick Leave Expansion

BY: JAMIE M. BOSSUAT, ESQ. KROLOFF, BELCHER, SMART, PERRY & CHRISTOPHERSON

Many employers have questions about when to provide paid COVID-19 sick leave to employees. There are four laws that potentially provide coverage paid COVID-19 related leave for many California employers: California’s paid sick leave law, the Health Workplaces Healthy Families Act, the American Rescue Plan of 2021 which expanded the Families First Coronavirus Relief Act, and Cal/OSHA’s Emergency Temporary Standards pertaining to COVID-19.

The Healthy Workplaces Healthy Families Act provides three days or 24 hours of paid sick leave for nearly all employees who work in California for 30 days or more for the same employer. The law provides for paid sick leave for prevention or treatment of the employee’s own health condition or that of a family member. This includes a COVID-19 illness, quarantine order, or isolation period. The California Labor Commissioner has taken the position that using paid sick leave for COVID-19 related reasons is at the employee’s election.

On March 29, 2021, California’s COVID-19 supplemental paid sick leave law became effective. The law provides up to 80 hours of supplemental paid sick leave for employees working for businesses with more than 25 employees. The new law is retroactive, providing this leave from January 1, 2021 through September 30, 2021. A new poster is required and can be downloaded from the Labor Commissioner’s website.

Additionally, the American Rescue Plan of 2021 expanded the scope of the Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical leave (EFMLA) which were initially provided for in the Families First Coronavirus Relief Act (FFCRA). For employers with less than 500 employees, this expansion may provide a source of tax reimbursement for some employees utilizing California’s required leave. Although the EPSL and EFMLA and tax credits were extended through September 30, 2021, employers may choose whether to participate. For those who elect to extend the coverage for their employees, EPSL balances were reset to 80 hours on April 1, 2021. Additionally, the EFLMA was extended to provide 12 paid weeks of leave (rather than the original 10 paid weeks). However, the law did not provide an additional allotment of EFMLA hours, so employees who have exhausted their 12 weeks will not be entitled to additional leave or tax reimbursement.

The reasons that employees can use both state and federal leave have also been expanded under both COVID-19 laws. Employees may receive paid time off to receive a vaccine, if they are experiencing vaccine-related side effects, and if they are in quarantine and waiting for COVID-19 test results.

Additionally, employers should keep in mind that the Cal/ OSHA Emergency Temporary Standards require employers to maintain earnings, rights, and benefits of employees who are excluded from the workplace due to work-related exposures to COVID-19. Employers can consider benefit payments from workers compensation and public sources in determining how to maintain employee earnings, rights, and benefits.

Lawsuits based upon a failure to provide leave or accommodations due to COVID-19 are on the rise and employers who have questions about how to properly implement laws relating to COVID-19 are advised to reach out to their labor and employment attorneys.