03.19.21
California Supplemental Paid Sick Leave: What Is It, and What Do We Do About It?
COVID-19
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
03.12.21
Paid Leave Benefits and the American Rescue Plan Act: Extensions of EPSL and E-FMLA
COVID-19
Paid Leave Benefits and the American Rescue Plan Act
Extensions of EPSL and E-FMLA
On March 11, President Biden signed the American Rescue Plan Act of 2021 (ARPA). The text of this bill fills over 240 pages, including an extension – and expansion – of paid leave tax credits first introduced almost one year ago as part of the Families First Coronavirus Response Act (FFCRA).
Tax Credits
While the requirement to provide these paid leave benefits – Emergency Paid Sick Leave (EPSL) and expanded FMLA leave (E-FMLA) – expired December 31, 2020, Congress extended the tax credits shortly before the end of the year. This allowed employers to claim credits through March 31, 2021. Under this year-end change, organizations could voluntarily decide to roll over these FFCRA paid leave benefits into 2021. The ARPA does something similar – tax credits are extended, so employers may voluntarily provide these paid leave benefits (and claim the associated tax credits) through September 30, 2021.
Reasons for Leave
Previously, EPSL could be used for six different reasons, and E-FMLA could be taken to care for a child whose school or day care had closed. Now, under the ARPA, both EPSL and E-FLMA can be taken for these reasons, as well as additional reasons including:
- Seeking or awaiting the results of a COVID-19 diagnostic test/medical diagnosis, including if this has been required by the employer
- Obtaining COVID-19-related immunization
- Recovering from injury, disability, illness, or condition related to a COVID-19-related immunization
Resetting the Clock
Another significant change is that the 10-day limit associated with EPSL now resets on April 1, 2021. As a result, employers can voluntarily provide employees with an additional 10 days of EPSL, including to those employees who exhausted this benefit before April 1, 2021.
While there’s no similar automatic “reset” for E-FMLA leave, employers should approach this like they approach traditional FMLA leaves, and evaluate how much leave an employee has available in the employer’s 12-month leave tracking period. (Even if an employee has exhausted the 12-week FMLA entitlement for these or other qualifying reasons, he/she may still take up to 10 days of EPSL for reasons listed in the ARPA.)
Increased E-FMLA Caps
The 10-week limit on E-FMLA was also increased to 12 weeks (and the $10,000 cap increased to $12,000), meaning that a full 12 weeks of paid time off is available to employees under the reasons outlined above.
The Option to Provide Paid Leave Benefits
We understand that it may seem simpler to not offer EPSL and E-FMLA benefits. Some employers have concerns that employees will take advantage of the fresh availability of 80 hours of sick leave. However, with COVID vaccinations gaining momentum, you may find employees requesting time off to recuperate from side effects, particularly after the second dose. EPSL could be a way to provide reassurance that employees will not lose income as a result of receiving the vaccine.
As you are likely aware, Cal/OSHA passed an emergency temporary standard that requires employers to create COVID-19 Prevention Programs. Part of this regulation requires employers to provide “exclusion pay” – pay to employees who would otherwise be able to work were it not for their exclusion from work following a COVID-19-related exposure or positive test. While it’s valid to question whether Cal/OSHA has this kind of regulatory authority, providing EPSL benefits during the exclusion from work allows employers to claim tax credits for these payments.
EPSL and E-FMLA must be offered consistently, either to all employees or none. It may be reasonable that the rewards for keeping these benefits available outweigh the potential drawbacks.
We’re Here to Help!
We expect the Department of Labor to issue clarifying comments in the days and weeks ahead. Sierra HR Partners will keep you posted on developing information. Please contact us with any questions you have.
03.09.21
New CDC Guidance for Fully Vaccinated People
COVID-19
On March 8, 2021, the CDC has released new health recommendations for people who have been fully vaccinated against COVID-19. “Fully vaccinated” is defined as having received both doses of a two-dose series of a COVID-19 vaccine, or having received a single-dose vaccine, two or more weeks ago.
According to the CDC, fully vaccinated people can:
– Visit with other fully vaccinated people indoors without wearing masks or physical distancing.
– Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing.
– Refrain from quarantine and testing following a known exposure if asymptomatic.
People who are fully vaccinated are encouraged to continue practicing social distancing and masking when in public and when visiting with people at higher risk for severe COVID-19 symptoms, such as the elderly.
This is very encouraging news, and it may be tempting to relax workplace requirements for masking and social distancing, but remember that our state and county regulations have not yet changed. The CDC provides recommendations to individuals, not to employers who must maintain compliance with a wide variety of state and local mandates. Sierra HR Partners recommends staying consistent with your COVID-19 health precautions until the Departments of Public Health provide updated guidance. Please contact us if you would like to discuss specific workplace situations.
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Have questions?
Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:
Dan Larsen – larsen@sierrahr.com
Janet Keene – keene@sierrahr.com
03.05.21
Taking Employees’ Temperature Could be Compensable Time
HR NEWS
Taking Employees’ Temperature Could be Compensable Time
Written by Doug Larsen of Fishman, Larsen, & Callister.
We have previously notified clients that time spent on the employer’s premises waiting for, and undergoing, required exit inspections or searches of packages, bags or personal technology devices is compensable as hours worked. (Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038.) Several clients are now asking whether time spent by employees submitting to temperature scans is also compensable time.
California’s definition of “hours worked” is broader than the federal definition of the term. Under federal law, “hours worked” includes the time an employee is suffered or permitted to work. California’s definition of “hours worked” is whenever the employee is “subject to the control of the employer,” including when the employee is suffered or permitted to work. It is this broad definition – subject to the control of the employer – that creates potential liability for an employer who requires an employee to submit to an inspection of bags as in the Frlekin case, sit on a bus traveling to the worksite, as in Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, or waiting for, and submitting to, a temperature scan.
In Frlekin, the Supreme Court has noted several elements of control: (1) Employees must wait for, and submit to a search; (2) the employer confines the employee to the premises as they wait; (3) the employee must wait for a security guard, open bags and provide a personal technology card; and (4) the activity primarily benefits the employer as opposed to the employee.
These are the same considerations an employer should consider as it compels an employee to submit to a temperature scan. I would also add another factor – the time involved.
For many employers, the temperature scan is no more than a 3-5 second act. That is the typical time an employee in my office spends while a temporal thermometer scans an employee’s forehead. The employee hardly breaks stride to have the scan performed. Assuming an employee immediately logs in after the scan, the 3-5 second delay probably does not affect the time worked.
In my case, the employee manually notes time arrived on a time card. Employees who manually record their time can record the minute they walked in and became subject to the scan.
A temperature scan may or may not affect the arrival time in those workplaces where timekeeping is computerized or electronic. If the scan takes 3-5 seconds, the computerized or electronic system is likely to record the time of arrival accurately, since the system records time by the minute, not the second. In fact, this might be a proper application of the de minimis rule which has very limited application under California law. This rule allows an employer to ignore trivialities when calculating hours worked. However, many employers have tried to use this rule to justify longer periods of time that could be recorded on a time card.
If an employee must wait in line and the process takes longer than a few seconds, it is possible that the arrival time recorded is affected by the longer scanning process. In this situation, it is likely that the time spent waiting and participating in the scanning process constitutes “hours worked.”
Wage and hour litigation is a burgeoning business in California. Lawyers are filing lawsuits based on inadvertent and seemingly inconsequential underpayments of wages. These allegedly small errors, when grouped as a class or into a PAGA lawsuit, can result in a substantial settlement or judgment. Of course, attorneys’ fees are often a significant portion of the settlement or judgment.
I often advise employers to “avoid the claim.” The claim itself has an economic value consisting of the time, effort and expense of responding to a claim, and paying any settlement. Frequently, an employer is best served by avoiding the claim, although it may cost more to operate the business.
I also recommend that employers undergo wage and hour audits of their workplace practices by a lawyer. While an audit cannot guarantee a claim won’t be filed, it can reduce the risk of the lawsuit, and the chances that a plaintiff prevails. We have performed many of these audits. Our clients have identified company practices that could result in potential claims, and have modified those practices to avoid those claims. The fact that a lawyer performs the audit shields the work from discovery and allows the employer to communicate freely and candidly understanding the attorney-client privilege protects those communications.
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Have questions?
Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:
Dan Larsen – larsen@sierrahr.com
Janet Keene – keene@sierrahr.com
03.03.21
Meal Period Rounding Rejected by the California Supreme Court
HR NEWS
Written by Doug Larsen of Fishman, Larsen, & Callister.
Pursuant to California’s wage orders, an employer must provide employees with a 30-minute meal period before the end of the 5th hour of work. A second meal period must be provided before the end of the 10th hour of work. An employer satisfies this obligation when it relieves employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take a 30-minute meal period, and does not impede them from doing so. A violation results in the imposition of a penalty, referred to as a “meal period premium” unless the employee voluntarily chose to work during a meal period after the employee was relieved of all duty.
What happens if an employer uses a rounding practice to record an employee’s meal period? According to Donohue v. AMN Services, LLC, 2021 Cal. LEXIS 1294, issued by the California Supreme Court on February 25, 2021, the employer will likely be in violation of the meal period law. The problem that arises is that the law is very precise. It requires a meal period of no less than 30 minutes which must occur within the first five or 10 hours of work. Rounding does not provide a precise measurement for determining the time when the employee started the meal period, or the exact length of that meal period. Moreover, it does not compensate the employee for time worked during the meal period that the employer knew the employee was working.
Using the example from the Court, if an employee clocked out for lunch at 11:02 am and clocked in at 11:25, and if the company rounded to the nearest 10-minute increment, the time recorded for lunch would have been 11:00 am to 11:30 am. In actuality, the meal period was 23 minutes. This rounding practice not only masks the length of the meal period, it does not disclose the reason the meal period was not taken nor compensate the employee for time worked during the meal period.
Quoting a case involving BBSI which resulted in significant employer liability, the Court wrote, “when time is scarce, minutes count.” The practice of rounding is not as precise as the meal period obligations. A few minutes lost one day cannot be offset by a longer meal period on another day.
As a result, the Court held that employers cannot engage in the practice of rounding time punches with respect to meal periods. Employees are entitled to timely meal periods lasting at least 30 minutes.
Furthermore, time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations. In other words, the burden is on the employer to show that an untimely or a short meal period was the result of an employee’s voluntary decision and not due to the demands of the job.
This decision should cause every California employer to consider its wage and hour practices, particularly timekeeping practices with respect to meal and rest periods.
How do you keep track of the exact time an employee leaves for a meal period, how long the meal period lasts, and documentation regarding the employee’s reason for a late or short meal period?
Have questions?
Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:
Dan Larsen – larsen@sierrahr.com
Janet Keene – keene@sierrahr.com
