Monthly Archives: March 2021

The Interaction of the Revived FFCRA and California COVID Paid Sick Leave

As an update to my article, below, about the new California COVID Paid Sick Leave. . . here is some more information about how it interacts with the “revived” FFCRA.  As you may recall, the FFCRA expired at the end of 2020. Then, Employers could offer it through March 31, 2021 and still get the payroll tax credit. Now the FFCRA has been modified and extended to September 30, 2021.

Right off the bat, you should note that the payroll tax credits continue. This is important considering California’s new Paid Sick Leave requirement that I discuss in my prior post.  I suggest you take advantage of this opportunity! California’s COVID Paid Sick Leave is a directive from California to employers to provide paid sick leave. The employer must fund this benefit without assistance from the state. The text of the new California law does not prohibit an employer from using the FFCRA to help offset these costs. If the reason for the sick leave qualified under the definitions in the FFCRA and the new California COVID Paid Sick Leave, the employer may designate it as both and take the tax credit.   

In addition to this welcome assistance, the revived FFCRA has expanded the reasons employees can take FFCRA leave (effective April 1, 2021): 

1.  The employee is receiving a COVID-19 vaccine.

2.  The employee is recovering from any injury, disability, illness, or condition related to the COVID-19 vaccine.

3.  The employee is seeking or awaiting the results of a COVID-19 test when the employee has been exposed to COVID-19 or the employer has requested the test.

In fact, these new reasons apply to the paid sick leave component of the FFCRA and the FFCRA’s EFMLA benefit.

Of note, if an employee took FFCRA paid sick leave already, their bank of time is renewed as of April 1, 2021.  That means, the employee has a new bank of 80 hours of qualifying paid sick leave (and paid sick leave for which the employer can get the payroll tax credit). 

There was no renewal of the EFMLA time – if exhausted, the employee is not entitled to more. 

On a related note, California’s Labor Commissioner is a total go-getter and already published the model notice for the California rule. You can access it here.

(You are all spared the original version of this post, that compared the FFCRA to The Vision and California’s legislature to Wanda Maximoff and the Labor Commissioner to Agent Woo.  I could not get Monica Rambeau and Dr. Lewis in it, so I bailed.  BUT if you want to talk about WandaVision, I am THERE. . . )

Now! New! California’s NEW COVID-19 Paid Sick Leave

California employers with more than 25 employees have a new paid sick leave requirement. The new law goes into effect March 29, 2021 but will apply retroactively back to January 1, 2021

SB 95 creates new Labor Code sections 248.2 and 248.3. Under the new laws, “covered employees” are entitled to up to 80 new hours of COVID-19 supplemental paid sick leave.  While this was originally seen as a continuation of the SPSL that was a tag-along to the FFCRA and expired December 31, 2020 (Nice acronyms!), it is a completely different, expanded paid sick leave program. 

All “covered employers” must provide the new California COVID-19 supplemental paid sick leave (SPSL). Although the 2020 version of the SPSL applied only to employers with 500 or more employees. This new law (I will call it 2021 SPSL) defines “covered employer” as any business “with more than 25 employees.”

All “covered employees” are entitled to take 2021 SPSL. A “covered employee” is any employee “who [is] unable to work or telework” for a covered employer for one of the reasons listed in the new law.

The law also adds new benefits for “providers” who provide in-home supportive services as defined under the California Welfare and Institutions Code and who provide “authorized in-home supportive services … to an eligible recipient.”

Covered employees may take the new 2021 SPSL if they are unable to work or telework, and providers may take 2021 SPSL if they are unable to work due to any of the following reasons.

  1. The covered employee or provider is subject to a quarantine or isolation period related to COVID-19.
  2. A health care provider has advised the covered employee or provider to self-quarantine because of COVID-19–related concerns.
  3. The covered employee or provider is attending an appointment to receive a COVID-19 vaccine.
  4. The covered employee or provider is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.
  5. The covered employee or provider is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  6. The covered employee is caring for a family member who is subject to a quarantine or isolation order or who a health care provider has advised to self-quarantine. Under the 2021 SPSL, family members include the employee’s spouse, registered domestic partner, parent (including parents-in-law), child (regardless of age or dependency), grandparent, grandchild, and sibling.
  7. The covered employee or provider is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Generally, full time employees are entitled to 80 hours of 2021 SPSL, while part-time employees are entitled to a pro rata amount based on the hours worked over a two-week period. The amount of sick leave under this program is capped at $511 per day and $5,110 total for each employee.

An employee is “full time” if the employer considers the worker to be full time or the employee is scheduled to work, or worked, an average of 40 hours per week in the two weeks before the employee takes the time off. 

The 80 2021 SPSL hours are in addition to the paid sick leave that an employer must provide and to which the covered employee or provider already is entitled under the California Paid Sick Leave rules.

The 2021 SPSL is law is retroactive to January 1, 2021. This means that an employee can use COVID-19 SPSL for any absence since January 1, 2021, that falls within a covered reason. The employer must provide this retroactive payment once the employee makes a verbal or written request.  The payment is to be by the next full pay period. And the wage statement must show a line item for the payment of the 2021 SPSL (separate from any other PTO or PSL). 

An employer may not force an employee to use any other form of paid or unpaid leave or time off, including company-provided sick leave, vacation, or paid time off (PTO), before using 2021 SPSL. The employee gets to choose the amount of 2021 SPSL employees to choose the number of COVID-19 SPSL hours to use, and when, up to the number of COVID-19 SPSL hours for which the employees are eligible.  However, if 2021 SPSL is available, the Cal/OSHA exclusion pay would not be triggered.

The employer must post a notice of this new benefit.  The Labor Commissioner is supposed to make a model notice you can use – and if I catch it, I will post it on the blog! And the Labor Commissioner will enforce this new 2021 SPSL program. 

The law will expire September 30, 2021.