It’s been just over a year since the words COVID, furlough, quarantine and vaccine became a part of our daily vocabulary. Amid challenging conditions all around us, there are also many new regulations that employers must be familiar with. Below are a few that we’d like to highlight for you:
I: COVID-19 supplemental paid sick leave
On March 19, 2021, California Governor Gavin Newsom signed legislation (SB 95) requiring employers with 25 or more employees to provide 80 hours of COVID-19 supplemental paid sick leave (COVID-19 SPSL) for covered employees who are unable to work because:
Of a COVID-19 quarantine or mandatory isolation order (order) issued by the state or a healthcare provider.
They are attending a COVID-19 vaccination appointment.
They are experiencing symptoms from a COVID-19 vaccination that prevents them from working.
They are seeking a medical diagnosis for their COVID-19 symptoms.
A family member they care for is subject to an order or must self-quarantine.
Their child’s place of care or school is closed because of COVID-19.
Full-time employees, and those who were scheduled to work (on average) at least 40 hours per week in the two weeks before they took COVID-19 SPSL, are entitled to 80 hours of COVID-19 SPSL leave. Part-time employees:
With a regular weekly schedule are entitled to COVID-19 SPSL that equals the number of hours they are normally scheduled to work over two weeks.
With variable schedules are entitled to COVID-19 SPSL that equals 14 times the average number of hours worked per day over the past six months.
Non-exempt employees must be paid the highest of the following for each hour of leave:
Regular rate of pay for the workweek in which leave is taken.
State minimum wage.
Local minimum wage.
Average hourly pay for preceding 90 days (not including overtime pay).
Exempt employees must be paid the same rate of pay as wages calculated for other paid leave. However, SPSL cannot exceed $511 per day and $5,110 in total for 2021 COVID-19 SPSL.
COVID-19 SPSL is in addition to any other paid sick leave employees are entitled to receive and employers cannot require that they use other paid or unpaid leave, paid time off, or vacation time before they use COVID-19 SPSL or instead of using it, except when the employer provides them another supplemental benefit for COVID-19 purposes.
The law is effective March 19, 2021 through September 30, 2021 and is retroactive to sick leave taken beginning January 1, 2021. However, the requirement to pay the COVID-19 SPSL doesn’t start until March 29, 2021 because the state granted employers a grace period before requiring them to pay this leave and:
The period the COVID-19 SPSL covers is January 1, 2021 through September 30, 2021 even though the law was signed in March; and
Covered employees who took qualifying leave between January 1, 2021 and March 28, 2021, can request payment for that leave if it was not paid by their employer in the amount that is required under this law.
One very important note is that employers must track this SPSL balance separately. As described in the FAQ: "The itemized wage statement or separate writing requirement ensures covered employees understand how many separate hours they have available for 2021 COVID-specific sick leave."
Small businesses (with 25 or fewer workers) are exempt from the law but may choose to offer supplemental paid sick leave and receive a federal tax credit if they are eligible for it.
The Families First Coronavirus Response Act (FFCRA) provides businesses with tax credits to cover certain costs of providing employees with paid sick leave and expanded family and medical leave for reasons related to COVID-19, for periods of leave from April 1, 2020, through March 31, 2021. The American Rescue Plan Act of 2021, enacted March 11, 2021, amended and extended the tax credits (and the availability of advance payments of the tax credits) for paid sick and family leave for wages paid with respect to the period beginning April 1, 2021, and ending on September 30, 2021. Since these regulations are all new and the IRS has not yet updated their website to incorporate updates about tax credits, please continue to check https://www.irs.gov/newsroom/covid-19-related-tax-credits-basic-faqs.
For more information See the Department of Industrial Relations FAQs and the mandatory workplace poster for further guidance.
II: Responding to the March Letter from the Department of Industrial Relations
As a California employer, you probably received a recent letter from the State of California Director of Industrial Relations. Reminders about several regulations, and cautions about failure to comply, are detailed in the two page alert. We wanted to make sure you had what you needed, so below are checklists you can use to address the critical elements.
Cal/OSHA COVID-19 Emergency Temporary Standard
Implement a written COVID-19 Prevention Program
Exclude employees who are sick, or have been exposed to COVID-19, from work until they have satisfied the return to work criteria
Ensure requirements for continuation of pay are followed
Require certain criteria be met before COVID-19 cases (those who have tested positive or have an order to isolate from public health authorities) can return to work
Notify employees of potential COVID-19 exposure within one business day
Ensure all employees are maintaining a physical distance of at least six feet
Methods include: signage, barriers, directional arrows, supervision
Provide face coverings and ensure they are worn by all employees when indoors and when outdoors if less than six feet away from others
Implement testing at no cost to the employee
Conduct additional testing, investigation, correction, and notification of outbreaks
Comply with case investigation, reporting, and recordkeeping requirements
Provide training and communicate with employees
Follow special rules for employer-provided housing and transportation
Paid Sick Leave
Provide Sick Leave
At least one hour of sick leave per every 30 hours worked
Notify employees about paid sick leave
In offer letters
In employee handbook
On posters
Allow employees to take sick leave upon request
For COVID symptoms or other illness
No doctor’s note required
Protection Against Retaliation
California law protects employees from workplace retaliation. Do not take retaliatory actions against employees for:
Reporting violations of safety standards that place employees in imminent danger
Reporting non-compliance with regulations, violations of the law, including public health orders
Using paid sick leave
For disclosing a positive COVID-19 test or order to quarantine or isolate
Workers’ Compensation
Senate Bill 1159 is a presumption law that changed how COVID-19 cases are handled by Workers’ Compensation. How should you respond to Senate Bill 1159?
Comply with all safety and health guidance to reduce risk of exposure and outbreaks in the workplace.
Understand that these two categories of employees who get sick or injured due to COVID-19 have a rebuttable presumption of eligibility for workers’ compensation benefits:
First Responders and Health Care Workers
Employees whose employers have five or more employees, and who test positive for COVID-19 during an outbreak at their specific workplace.
Report employees with positive COVID-19 tests to your claims administrator.
If an employee claims that the illness is work related and wants to file a claim for workers’ compensation benefits, provide them with the claim form.
Investigate claims and submit rebuttals within the required timeframes.
If you need assistance addressing any of these requirements, please reach out to your THRM Consultant.