California recently passed a law which requires California employers with 25 or more employees nationwide to provide California employees with COVID-19 related paid sick leave. The obligation to provide supplemental paid sick leave is in addition to other leaves requires by California state law, such as paid sick leave.

Under California’s 2021 COVID-19 Supplement Paid Sick Leave law, effective March 29, 2021, employees are entitled to up to 80 hours of COVID-19 related sick leave from January 1, 2021 through September 30, 2021, immediately upon an oral or written request to their employer.

Of note, the law applies retroactively to January 1, 2021. Employees may seek reimbursement for sick leave they have already taken or a qualifying reason. If an employee took leave for the reasons below prior to March 29, 2021, employees can make an oral or written request to the employer for payment.

Under the law, an employee can take the “supplemental paid sick leave” if they are unable to work or telework for the following reasons:

1. The employee is subject to quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace,
2. The employee has been advised by a healthcare provider to quarantine.
3. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
4. The employee is caring for a family member who is subject to a COVID-19 quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19.
5. The employee caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
6. The employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms.

The amount of paid leave which employees are eligible for is as follows:

• Full-time employees: 80 hours
• Part-time employees with a regular weekly schedule: the number of hours the employee is normally scheduled to work over two weeks.
• Part-time employees with variable schedules: 14 times the average number of hours worked per day over the past 6 months.

Rate of Pay

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 time.  The rate of pay is not to exceed $511 per day and $5,110 in total.

Notice Requirements

Employers are required to post the model notice provided by the California Department of Industrial Relations. If employees are not frequently present at the employer’s offices, employers can send the notice via email.

Furthermore, employers are required to list the employee’s supplemental paid sick leave on employee’s paystubs as a separate line item, separate and apart from regular California paid sick leave. 

Documentation Required to Take Leave

The law has very employee-friendly documentation requirements. Employers may not deny a worker 2021 COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a health care provider.  A covered employee is entitled to take 2021 COVID-19 Supplemental Paid Sick Leave immediately upon the covered employee’s oral or written request.  The leave is not conditioned on medical certification.

As set forth in the FAQs that were published by the CA Department of Industrial Relations regarding the law, although an employer cannot deny 2021 COVID-19 Supplemental Paid Sick Leave solely for lack of a medical certification, it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the covered employee is not requesting 2021 COVID-19 Supplemental Paid Sick leave for a valid purpose.  In such cases, the reasonableness of each parties actions will be reviewed if there is a dispute regarding the propriety of the decision to deny paid leave.

Recommendations

For employers with California employees, who have more than 25 employees nationwide, we recommend that the model notice provided by the California Department of Industrial Relations be posted (either in person, or distributed electronically). Such employers should also contact their payroll provider to ensure that the amount of supplemental paid sick leave is being included on employee paystubs.