California Injects More COVID-19 Supplemental Paid Sick Leave into the State as Vaccine Eligibility Expands

Blank Rome LLP

Blank Rome LLP[author: Nicole N. Wentworth]

On March 19, 2020, Governor Newsom gave another shot in the arm to California’s COVID-19 supplemental paid sick leave law, which (as amended) goes into effect today, March 29, 2021. The new statute, California Labor Code section 248.2, replaces and expands the state’s supplemental sick leave law that expired at the end of last year.

This new law covers all California employers with more than 25 employees, provides more paid sick leave, adds more qualifying reasons for leave, and entitles some employees to retroactive payment.

It is anticipated that all adults in California will be eligible to receive the COVID-19 vaccine by mid-April, shortly after the new leave law takes effect. Employers should therefore anticipate and prepare for a new a flood of leave requests as employees snag available appointments.

A New Dose of Supplemental Paid Sick Leave

Perhaps the most important update is that the new law provides more supplemental paid sick leave, which must be made available for immediate use upon the employee’s oral or written request.

Under the new law, full-time employees are entitled to 80 hours of supplemental paid sick leave.

Part-time employees with a “normal weekly schedule” are entitled to an amount of leave equivalent to the number of hours they are regularly scheduled to work in a two-week period. Part-time employees with a “variable” schedule who have worked more than 14 days are entitled to leave in the amount of 14 times the average number of hours they worked each day in the six months before their supplemental paid leave, or over their entire period of employment if they worked less than six months. Part-time employees with a “variable” schedule who have worked 14 days or less are entitled to leave in the amount of the total number of hours they have worked.

The statute caps the amount of supplemental paid sick leave any employer must pay at $511 per day and $5,110 in total.

Opening Up More Qualifying Reasons for Leave—Including to Get Vaccinated

California’s vaccine supply is increasing, and more schools and business across the state are beginning to open up. With these changes, employees’ reasons for taking leave have evolved. The new law reacts to these changes by establishing more qualifying reasons for the use of paid leave, including to get a vaccine, whether attending an appointment to receive a COVID-19 vaccine or experiencing symptoms related to the vaccine itself.

The new law also draws from the federal Families First Coronavirus Response Act (“FFCRA”), which expired on December 31, 2020 (though use of payroll tax credits and the provision of its leave continues to be available on a voluntary basis through September 30, 2021). Specifically, if the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis, if the employee is caring for a family member in quarantine, or if the employee is caring for a child whose school or place of care is closed “due to COVID-19 on the premises,” they are entitled to additional paid leave.

When California makes vaccine appointments available to all adults in mid-April, employers should anticipate new leave requests as employees get the vaccination and are unable to work due to potential side effects.

Beware of Side Effects—Retroactive Payments

Although the new law went into effect March 29, 2021, supplemental paid sick leave will apply retroactively to January 1, 2021, and remain effective through September 30, 2021. This means that, if requested by the employee, employers must pay out supplemental paid sick leave to any employee who was not paid when they were unable to work for any of the qualifying reasons above, which occurred between January 1 and March 28, 2021.

Never fear, the state has published a Q&A on the new law and a mandatory poster that must be posted or circulated electronically to employees. Employers should be prepared to address these requests for retroactive and future supplemental paid sick leave.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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