California Supplemental Paid Sick Leave: What Is It, and What Do We Do About It?

California Supplemental Paid Sick Leave What Is It, and What Do We Do About It?

Last September, Governor Newsom signed a bill that created a statewide COVID-19-related paid time off benefit called supplemental paid sick leave (SPSL). While the federal government had passed the Families First Coronavirus Response Act and created Emergency Paid Sick Leave and Expanded FMLA leave, employers of more than 500 were exempt, as well as certain emergency response/healthcare employers. The 2020 SPSL benefit sought to close that gap – it applied to both employers of more than 500 and emergency response/healthcare employers. This benefit expired December 31, 2020 when the two FFCRA benefits technically expired.

On March 18, our state legislature passed two new bills that bring California SPSL into 2021. We expect Governor Newsom’s signature in the coming days, and they will take effect 10 days from the date that they’re signed. Like the federal FFCRA extension passed under the American Rescue Plan Act (ARPA), the requirement to provide supplemental paid sick leave will end September 30, 2021.

Which employers are covered by this new law?

While SPSL 2020 applied only to those exempted by the federal law (e.g. employers over 500 and emergency response/healthcare employers), SPSL 2021 applies to all employers of more than 25.

What does supplemental paid sick leave cover?

With some minor differences in language, SPSL covers the same situations now covered by EPSL and E-FMLA (including adjustments made by ARPA). Specifically, employees are eligible for SPSL when they are “unable to work or telework” because they are:

1. Subject to a quarantine or isolation period related to COVID-19 (issued by the California Department of Public health, the CDC, or a municipality).

2. Advised by a health care provider to self-quarantine due to concerns related to COVID-19.

3. Attending an appointment to receive a vaccine for protection against contracting COVID-19.

4. Experiencing symptoms related to a COVID-19 vaccine.

5. Experiencing symptoms of COVID-19 and seeking a medical diagnosis.

6. Caring for a family member who is subject to situations (1) or (2).

7. Caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Employees are eligible to use this leave immediately upon hire.

How much time do employees receive?

Employees are entitled to two weeks off with pay (80 hours if they are full time). For part-time employees, the number of hours to which they are entitled depends on their schedule, and the legislation includes methods to calculate this benefit for employees with a variable schedule and brand new employees with a variable schedule.

Pay for this benefit is capped at $511/day and $5,110 in total.

Employees are able to determine when and how to use this except in just one case – employers may require employees to use SPSL before they are eligible for “exclusion pay” (as required by the Cal/OSHA COVID-19 Prevention Program standard).

This benefit is retroactive back to January 1, 2021. This means that employees who already took time off under one of the reasons above could request pay for that time off. If they do, employers must provide that pay by the payday for the next full pay period.

How does SPSL work with FFCRA benefits?

As we wrote on March 12, employers have the option of continuing federal FFCRA benefits – EPSL and E-FMLA – and then claiming tax credits on the wages paid to employees. No such tax credit is offered to employers required to provide California SPSL.

Employers are permitted to satisfy the requirements of the state law by providing employees with a benefit that covers the same reasons as SPSL, and pays the employees at the same rate as required by SPSL.

Consequently, employers who were on the fence about continuing to provide FFCRA benefits might choose to do so in order to both meet the requirements of SPSL law and claim federal tax credits.

(This provision does not apply to wages paid under a normal sick leave plan, including state-mandated paid sick leave, because this new law requires employers to provide a “supplemental” sick leave benefit.)

What notice must I give to employees?

We’ll be required to notify employees in two ways.

First, the Labor Commissioner will make a notice available shortly after the law is enacted. Employers must post this notice with other postings (or provide it electronically to employees who don’t visit physical offices or workplaces).

Second, employers must provide regular notice of an employee’s SPSL balance just like they do for state-mandated paid sick leave. This may be on the pay stub or provided separately every pay day.

Do I have to update my COVID-19 Prevention Program (CPP)?

As you know, Cal/OSHA has required employers to create COVID-19 Prevention Programs (CPPs). One section of your CPP should be devoted to benefits available to employees. As a result of both ARPA and this state SPSL law, that section will need to be updated.

If Sierra HR Partners helped you create your CPP, we will be sending out text that you can copy and paste into your CPP. If you haven’t created your CPP yet and need some help, please reach out to one of the consultants.

We understand how hard it is to keep up with ever-changing legal requirements! Please contact one of our certified Consultants by phone or e-mail, and we will be glad to help you navigate the latest developments.

559-431-8090

Dan Larsen – larsen@sierrahr.com

Janet Keene – keene@sierrahr.com