California Labor Commissioner Clarifies COVID-19 Paid-Sick-Leave Rules

By Kate L. Brown and Jonathan A. Siegel © Jackson Lewis May 18, 2021
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The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite an FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employee's leave request qualified under the statute. Fortunately, the California Labor Commissioner's Office has updated its FAQs to provide further clarity to employers.

Reasons for Leave

The first clarification pertains to leave for childcare purposes. The statute states that eligible employees may take supplemental paid sick leave if "caring for a child…whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises." This wording led to confusion for employers since individuals were claiming the language required supplemental sick leave pay if their school or childcare facility had been closed for a prolonged period of time and not due to a sudden COVID-19 closure due to an issue on the premises.

The Labor Commissioner has stated this language means a child's school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after Jan. 1 was exposed to, or had contracted, COVID-19.  This does not include caring for a child whose school or daycare was closed before Jan. 1.  If the school or daycare was closed on or after Jan. 1, it must have been due to a closure, or partial closure, making the care unavailable due to COVID-19 on the premises.

The next clarification is whether an employee is eligible for supplemental paid sick leave if someone the employee lives with is exposed, experiences symptoms, or is diagnosed with COVID-19. The Labor Commissioner states that an eligible employee may use supplemental paid sick leave if the employee is caring for a family member either because the family member has been recommended by a medical professional to stay home due to COVID-19 or the family member is subject to a COVID-19-related quarantine or isolation period.

Requests for Leave

The Labor Commissioner has clarified that an employer must provide supplemental paid sick leave to an eligible employee "immediately upon the oral or written request" of the eligible employee.

Relation to Other Laws

The Labor Commissioner specifies that the recently passed supplemental paid sick leave is different than both the federal Families First Coronavirus Response Act and the 2020 California COVID-19 Supplemental Paid Sick Leave. The new law provides an additional bank of time for COVID-19 related reasons.

The Labor Commissioner also notes in the FAQs that federal law currently provides tax credits for employers with less than 500 employees who provide COVID-19 related paid sick leave voluntarily. The Labor Commissioner directs employers to the  Internal Revenue Service FAQs for more information on the federal tax credit.

Kate L. Brown is an attorney with Jackson Lewis in San Francisco. Jonathan A. Siegel is an attorney with Jackson Lewis in Orange County, Calif. © 2021 Jackson Lewis. 

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