Adding Paid Sick Leave, Including Supplemental COVID-19 PSL to the Paycheck Stub

Written By Doug Larsen

PSL Benefits. Almost every California employee is entitled to 24 hours or three days of PSL annually. Effective on March 29, 2021 the state of California has required employers of more than 25 employees to provide up to 10 days or 80 hours of Supplemental COVID-19 PSL. This supplemental benefit expires September 30, 2021. Conditions for Supplemental PSL. Supplemental PSL is available if the employee is not able to work because (s)he:

1) is subject to a COVID-19 quarantine or isolation order, 2) has been advised to self-quarantine, 3) is attending an appointment to receive a vaccine, 4) is experiencing symptoms due to a vaccine, 5) is experiencing COVID-19 symptoms and is seeking a medical diagnosis, 6) is caring for a family member who is quarantining, or 7) if a child’s school or place of care is closed.

Required Notice. The law requires an employer to provide written notice of PSL or Supplemental PSL that is available to each employee. Notice must be provided each payday on the itemized wage statement (paycheck stub) or on a separate writing included with each paycheck. Many employers don’t understand the liability that is incurred in the event the available PSL or available Supplemental PSL is not included on the paycheck stub or on a separate writing with the paycheck.

Liability for Failure to Provide Notice. Per Labor Code § 248.5(b)(1), the Labor Commissioner may order “the payment of an additional sum in the form of an administrative penalty to an employee” whose rights are violated as a result of a violation of the Healthy Workplaces, Healthy Families Act.

Labor Code 248.5(b)(3) describes this administrative penalty. If the employer’s violation of the Act results in harm to the employee or results in a violation of the rights of an employee, the administrative penalty is $50 per day not to exceed $4,000 per employee. The penalty is paid to the employee. In a hearing in which I (Doug Larsen) participated, the Hearing Officer in a hearing before the Labor Commissioner issued an award on behalf of an employee whose paycheck stubs did not include available PSL. The employee made it clear that he was never sick, that he never sought sick leave, and that he did not ask how much sick leave was available to him. He did not care. Nevertheless, the Hearing Officer wrote, “Defendant did admit Plaintiff was not provided written notice of available sick leave hours, therefore, Plaintiff is entitled to recover $4,000.00 pursuant to Labor Code section 248.5(b)(3) for other harm or violation of sick leave provisions.”

A seemingly harmless error resulted in a $4,000 penalty. Consider the employer with 26 employees who fails to include available Supplemental PSL on the paycheck stub. The penalty is $104,000.

Conclusion. It is critical for employers to understand and to comply with each of the wage and hour provisions imposed under California law. California has adopted a draconian system of enforcing minor violations of the law, even those violations that do not result in actual harm to an employee. I recommend that employers undergo an audit of their wage and hour practices. While the process is time-consuming and expensive, an audit is dwarfed by the substantial liability for damages, statutory damages, civil penalties and attorneys’ fees that can be imposed for a violation of the law.