United States: California Extends COVID-19 Paid Leave Requirements To Large Employers

California Gov. Gavin Newsom has signed into law a new paid leave statute entitling full-time employees to 80 hours of supplemental paid leave for certain work absences relating to COVID-19 if they work for a private-sector employer in California that employs 500 or more employees nationwide. Those large employers were exempt from the paid leave requirements of the federal Families First Coronavirus Response Act (FFCRA), which Congress passed in the early months of the pandemic. Thus, employers operating in California that were large enough to escape federal paid leave requirements should act immediately to comply with California's new supplemental paid leave rules.

Supplemental Paid Leave Entitlements

Codified as California Labor Code Section 248.1, the new statute entitles employees to supplemental paid leave for any of the following reasons:

• The covered worker is subject to a federal, state or local quarantine or isolation order related to COVID-19.
• The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
• The covered worker is prohibited from working by the covered worker's hiring entity due to health concerns related to the potential transmission of COVID-19.

In contrast to the FFCRA, the new California law also provides supplemental paid leave benefits to health care workers and emergency responders.

With limited exceptions (see Cal. Labor Code § 248.1(a)(2)(C)), the law defines "covered worker" to include employees of any "hiring entity," which is a term defined broadly to cover all private businesses operating in California that have 500 or more employees nationwide. The definition for "covered worker" does not contain an exemption for employees subject to collective bargaining agreements.

Amount of Supplemental Paid Leave

The new law requires hiring entities to provide up to two weeks of supplemental paid leave to all covered workers. 

Full-Time Employees: A covered worker is entitled to 80 hours of supplemental paid leave if the hiring entity "considers" the covered worker to work full time or the covered worker worked, or was scheduled to work, an average of at least 40 hours per week during the two weeks preceding the covered worker's supplemental paid leave. 

Part-Time Employees: If employed on a part-time basis with a normal weekly schedule, a covered worker is entitled to supplemental leave for the total number of hours the covered worker is normally scheduled to work over a two-week period. If the covered worker works a variable number of hours, a hiring entity must determine the covered worker's supplemental leave entitlement by calculating the average number of hours the covered worker worked each day for the hiring entity for up to six months preceding the date the covered worker took supplemental leave and multiply that average daily hours calculation by 14.

Paid Leave Benefits: While on supplemental leave, a covered worker is entitled to their regular rate of pay, calculated according to the regular rate the covered worker received during the pay period immediately preceding leave, not to exceed $511 per day and $5,110 for the full period of leave.

Interaction with Other Forms of Paid Leave

The supplemental paid sick leave required under California Labor Code Section 248.1 is in addition to other forms of leave, such as vacation benefits, provided by a hiring entity. Furthermore, a hiring entity cannot require employees to exhaust other forms of paid leave, including PTO or vacation time, prior to or in lieu of the use of supplemental paid leave.

However, if an employer has already provided equivalent benefits to employees for reasons that would qualify for supplemental paid leave under the new California law, e.g., certain forms of FFCRA leave or COVID-related leave required by local ordinances, those benefits can be counted toward satisfying the requirements of California Labor Code Section 248.1. 

Certification and Notice

A covered worker's entitlement to supplemental paid leave is not conditioned on medical certification. Instead, the new law requires hiring entities to make supplemental paid leave available for immediate use by a covered worker, upon the oral or written request of a worker to a hiring entity. Therefore, an employer should immediately provide supplemental paid leave following a covered worker's request and should not deny a covered worker supplemental leave based solely on a lack of certification of a health care provider. In analyzing similar requirements applicable to food sector workers implemented under Executive Order N-51-20 (and later codified by Labor Code Section 248), the California Department of Industrial Relations (Department) confirmed that a medical certification should be required only when the employer has other information indicating that the worker is not requesting supplemental paid leave for a valid purpose. It remains to be seen whether the Department will take a similar interpretive approach to the requirements of Labor Code Section 248.1.

The California Department of Industrial Relations has published a poster to address the requirements of California's new law requiring supplemental paid leave.   Hiring entities subject to the new law are required to display the poster in a conspicuous place. If a hiring entity's covered workers do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means, such as by electronic mail.

Key Takeaways

California employers with more than 500 employees nationwide should immediately begin reviewing their leave policies, updating payroll practices and preparing to respond to supplemental leave requests. These supplemental leave requirements are set to become effective no later than Sept. 19, 2020. 

An employer's obligation to provide supplemental paid sick leave does not expire until the later of Dec. 31, 2020, or the expiration of any extension to the leave benefits provided under the Emergency Paid Sick Leave Act (EPSLA) established by the FFCRA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.