Complying with COVID-19 Paid-Sick-Leave Laws in California

After the federal Families First Coronavirus Response Act (FFCRA) expired along with its mandate for employers to provide paid sick leave, state and local lawmakers stepped in to fill the gap. Their efforts have created a hodgepodge of temporary mandates requiring employers to pay workers who are sick, need to isolate or quarantine, or are seeking COVID-19 testing or vaccination. This article is the first in a series that explores employers' state paid-sick-leave obligations during the pandemic and beyond.

The COVID-19 pandemic added another layer of compliance challenges for California employers as they navigate paid-sick-leave mandates at the state and local level.

Many now face overlapping requirements. The FFCRA required certain public employers and private businesses with fewer than 500 employees to provide COVID-19-related leave through the end of 2020. Although the federal mandate has expired, employers that voluntarily provide such leave are eligible for tax credits through Sept. 30. Employers with workers in California, however, still may be required to provide paid sick leave under a statewide mandate and local ordinances.

"Many localities … implemented their own local emergency paid-sick-leave ordinances to address absences related to COVID-19 and have extended or will extend them this year," noted Jason Geller and Abby Harrington, attorneys with Fisher Phillips in San Francisco. Although most of these emergency laws provide up to two weeks of paid leave, other details may vary, including whether small or large businesses are covered, the reasons for which leave may be taken and the expiration date of the ordinance. Even employers with one worksite may have to comply with multiple ordinances if their employees are working remotely from other locations.

Here are the temporary rules that California employers must track and administer as the coronavirus crisis continues.

Statewide Leave Expanded

California lawmakers recently extended and expanded a COVID-19 paid-sick-leave law, which applies retroactively to Jan. 1 and expires on Sept. 30. Previous mandates covered food-sector workers and businesses with 500 or more employees, but the new law, SB 95, applies to employers with at least 25 employees.

Employees are eligible for leave if they are "unable to work or telework" for one of the following reasons:

• The employee must quarantine or isolate under an order or guidelines from certain state or local authorities or the U.S. Centers for Disease Control and Prevention (CDC).
• The employee has been advised by a health care provider to self-quarantine.
• The employee has an appointment to receive a COVID-19 vaccine.
• The employee is ill after receiving a COVID-19 vaccine and cannot work or telework.
• The employee has COVID-19 symptoms and is seeking a medical diagnosis.
• The employee is caring for a covered family member who needs to quarantine or isolate.
• The employee is caring for a child whose school or child care facility is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  

Eligible employees may receive up to 80 hours of leave under SB 95. Employers can't require workers to use other paid-leave accruals first, and the time allowed under the COVID-19 supplemental paid-sick-leave law is in addition to accruals under the state's regular paid-sick-leave mandate. However, leave may run concurrently for COVID-19-related reasons that are also covered under local mandates.

Employers should note that the California Division of Occupational Safety and Health (known as Cal/OSHA) issued an emergency temporary standard requiring employers to pay workers who are excluded from the workplace because of a potential COVID-19 outbreak or exposure. However, employers may require covered workers to exhaust their COVID-19 supplemental paid sick leave before providing additional paid leave.

Local Laws Vary

At least 11 local jurisdictions in California have COVID-19 paid-sick-leave laws: Long Beach, the city and county of Los Angeles, Oakland, the city and county of Sacramento, San Francisco, San Jose, San Mateo County, Santa Rosa, and Sonoma County.

"They were originally enacted last year as gap-fillers in response to the federal FFCRA, which generally applied to employers with fewer than 500 employees," explained Kayla Cox, an attorney with Littler in Sacramento, Calif. Therefore, many of California's local COVID-19 paid-leave laws initially only applied to employers with 500 or more employees.

Like the statewide mandate, however, many city and county ordinances were expanded to cover all employers.

For example, a 2020 supplemental paid-sick-leave law in Los Angeles County applied to employers with a nationwide headcount of at least 500 employees. Expanded coverage started on Jan. 1 and applies to all employers in the unincorporated areas of Los Angeles County. Employees are not eligible for additional leave under the new local ordinance if they already used their leave allowance under FFCRA or the prior Los Angeles County ordinance.

The city of Los Angeles also has a COVID-19 supplemental paid-sick-leave ordinance, which was expanded on Feb. 10 to cover employees who have been working for their employer for at least 60 days and can't work or telework for certain pandemic-related reasons. The ordinance applies to businesses with at least 500 employees in the city or 2,000 employees nationwide.

As with the statewide law, many local COVID-19 paid-leave ordinances provide that employees may use COVID-19 paid leave before using other accrued paid time off. They also provide that employees may voluntarily choose to use other accrued time off provided by an employer before using COVID-19 paid leave, but an employer cannot require an employee to do so.

"Additionally, many local COVID-19 paid-leave laws provide offsets," Cox said. For example, Santa Rosa's law provides that to the extent federal or state law requires employers to provide paid leave or paid sick time specifically related to COVID-19, an employer may substitute leave under the federal or state law for their obligations under Santa Rosa's local ordinance if the obligations coincide and the relevant federal or state law permits such concurrent paid leave.

"However, employers are required to provide additional paid sick leave under Santa Rosa's local ordinance to the extent that the ordinance's requirements exceed the requirements of those laws," Cox explained.

Tracking Leave Entitlements

Guillermo Tello, an attorney with Clark Hill in Los Angeles, recommended that employers audit where employees are performing remote work during the pandemic. "If an employee needs time off for a COVID-related reason, you need to identify which local laws apply to that individual.

"That's the starting point," he noted. "The next challenge—now that you know where the work is being performed—is identifying the local COVID-related leave law and ensuring that you stay informed and track what the law covers and when it expires."

Charles Thompson, an attorney with Ogletree Deakins in San Francisco, suggested that employers designate a specific person in the organization to be responsible for monitoring COVID-19-related developments. Smaller businesses may want to reach out to an external source, such as a law firm or HR consultant, to help them comply, he said.

Certain pandemic-related restrictions will be gradually lifted as vaccines become more widely available. But Mark Phillips, an attorney with Reed Smith in Los Angeles, said some California rules and programs will remain in place for the foreseeable future. "So employers should exercise caution and not assume that employee protections and leave laws have become less complicated as the pandemic seems to lessen."