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2021 COVID-19 Supplemental Paid Sick Leave FAQs

1. Which employers are covered by the new 2021 COVID-19 Supplemental Paid Sick Leave Law?

All employers, public and private, with more than 25 employees are covered, including those with collective bargaining agreements.

2. Which employees are covered by this new law?

Covered employees are individuals who cannot work or telework due to three specific reasons, which have been listed below. Under the 2021 COVID-19 Supplemental Paid Sick Leave law, covered employees are entitled to paid sick leave, in addition, to leave provided under previous laws, which expired on December 31, 2020.

3. What circumstances would allow a covered employee to take 2021 COVID-19 Supplemental Paid Sick Leave?

An employee who is covered by the new law must be unable to work or telework due to any of the following COVID-19-related reasons:

Caring for Yourself: The employee is subject to quarantine or isolation period related to COVID-19, or is experiencing COVID-19 symptoms and seeking a medical diagnosis.

Caring for a Family Member: The covered employee is caring for a family member who is subject to a COVID-19 quarantine or isolation period, has been advised by a healthcare provider to quarantine due to COVID-19, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19.

COVID-19 Vaccine-Related: The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms.

4. Does being subject to a general stay-at-home order mean that a covered employee is “subject to a 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”?

No. The order or guidelines must be specific to the covered employee’s circumstances. A general stay-at-home order would not count.

5. What time period does 2021 COVID-19 Supplemental Paid Sick Leave Cover?

January 1, 2021 through September 30, 2021.

Beginning on March 29, the requirement to provide 2021 COVID-19 Supplemental Paid Sick Leave goes back to January 1, 2021, which means that 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 the employer in the amount now required under this law.

The requirement to provide 2021 COVID-19 Supplemental Paid Sick Leave will end on September 30, 2021.

Even if the law expires while a covered employee is taking this leave, the employee can finish taking the amount of 2021 COVID-19 Supplemental Paid Sick Leave they are entitled to receive.

6. When must an employer begin paying COVID-19 Supplemental Paid Sick Leave to covered employees?

Employers have a 10-day grace period after the signing of the law to begin providing 2021 COVID-19 Supplemental Paid Sick Leave.

This means that employers are required to provide this leave beginning on March 29, 2021.

For 2021 COVID-19 Supplemental Paid Sick Leave taken by a covered employee on or after March 29, 2021, the employer must provide payment no later than the payday for the next regular payroll period after the sick leave was taken.

7. When does an employer have to make the 2021 COVID-19 Supplemental Paid Sick Leave available to a covered employee?

Employers must make Supplemental Paid Sick Leave available immediately upon the oral or written request of the covered employee.

8. How does a covered employee request retroactive 2021 COVID-19 Supplemental Paid Sick Leave for leave taken between January 1, 2021 and March 28, 2021?

If the covered employee took leave between January 1, 2021 and March 28, 2021 for one of the qualifying reasons under this new law, but at the time was not paid for the leave in the amount this law requires, then the covered employee has the right to ask the employer for a retroactive payment equal to this new amount.

The requirement to provide retroactive 2021 COVID-19 Supplemental Paid Sick Leave does not start until March 29, 2021, and only if the covered employee makes an oral or written request to be paid for leave that qualifies.

For example, if a covered employee had to take two hours off for a vaccine appointment on February 15, 2021, the employee can make an oral or written request to the employer to be paid for that time off in February, since it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave.  The oral or written request must be made on or after March 29, 2021. A request made before March 29 does not count.

After the employee makes the request, the employer will have until the payday for the next full pay period to pay the retroactive Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2021 COVID-19 Supplemental Paid Sick leave hours remain available to the covered employee.

9. Can an employer require certification from a healthcare provider before allowing a covered employee to take the leave?

No. An employer may not deny a worker 2021 COVID-19 Supplemental Paid Sick Leave based solely on lack of certification from a healthcare provider.  Covered employees are entitled to take 2021 COVID-19 Supplemental Paid Sick Leave immediately upon oral or written request. The leave is not conditional on medical certification.

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 the leave for a valid purpose.  In any such claim, the subjective reasonableness of each party’s actions will inevitably come into play.

For example, if a covered employee informs an employer that the covered employee is subject to a local quarantine order or recommendation, has to stay home, and qualifies for 2021 COVID-19 supplemental paid sick leave, but the employer subsequently learns that the covered employee was out at a park, the employer could reasonably request documentation.

10. How much 2021 COVID-19 Supplemental Paid Sick Leave is a full-time employee entitled to receive?

A covered employee who is considered full-time, who worked or who was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken, is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave.

11. How do you calculate the leave entitlement for a part-time covered employee who does not have a set schedule?

Below are the two methods to calculate the entitlement for part-time covered employees.

    • Part-Time Covered Employees with Variable Schedules Who Have Worked For an Employer Over a Period of More Than 14 Days.

Total Number of Hours Worked During 6-Month Period

520 hours

Total Number of Days in 6-Month Period

182 days

Average Number of Hours Worked Each Day in 6-Month Period

520 hours ÷ 182 days = 2.857 hours

2021 COVID-19 Supplemental Paid Sick Leave Entitlement

2.857 x 14 = 40 hours

    • Part-Time Covered Employees with Variable Schedules Who Have Worked For an Employer for a Period of 14 Days or Fewer. 
Total Number of Hours Worked During the Two-Week Period 7 hours
Total Number of Days in a Two-Week Period 14 days
Average Number of Hours Worked Each Day in the Two-Week Period 7 hours ÷ 14 days =.5 hours
2021 COVID-19 Supplemental Paid Sick Leave Entitlement .5 hours x 14 =7 hours

 

12. How much must a covered employee be paid for the 2021 COVID-19 Supplemental Paid Sick Leave they are entitled to receive?

For each hour of 2021 COVID-19 Supplemental Paid Sick Leave that a non-exempt covered employee is entitled to receive, the employee must be paid whichever of the following is highest:

    • The employee’s regular rate of pay for the workweek in which the leave is taken
    • A rate calculated by dividing the employee’s total wages (not including overtime premium pay) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment
    • The State minimum wage
    • The local minimum wage

2021 COVID-19 Supplemental Paid Sick Leave for exempt covered employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

An employer is not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for 2021 COVID-19 Supplemental Paid Sick Leave taken by the covered employee, but the covered employee may utilize other paid leave that might be available.

13. Can an employer count the COVID-19-related supplemental paid sick leave provided in accordance with a local paid sick leave ordinance toward this new 2021 COVID-19 Supplemental Paid Sick Leave law?

Yes. For example, if an employer provides a full-time covered employee 40 hours of COVID-19-related supplemental paid sick leave in accordance with a local ordinance, those same 40 hours would count toward the employer’s obligations under the 2021 COVID-19 Supplemental Paid Sick Leave law. This is only so long as the leave provided is for a reason listed under the 2021 COVID-19 Supplemental Paid Sick Leave law, and is at least at the same rate of pay as this law requires.

14. Should 2021 COVID-19 Supplemental Paid Sick Leave be listed separately from regular Paid Sick Leave on the itemized paycheck (or separate writing) at the time wages are paid?

Yes. The 2021 COVID-19 Supplemental Paid Sick Leave law is clear that the obligation to provide COVID-19 Supplemental Paid Sick Leave is in addition to regular paid sick leave. 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.

15. What notice must employers provide to covered employees about 2021 COVID-19 Supplemental Paid Sick Leave under California law?

Under California law, employers are required to display the required poster in a conspicuous place that contains information about 2021 COVID-19 Supplemental Paid Sick Leave.

If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.

16. Can an employer require that an employee use 2021 COVID-19 Supplemental Paid Sick Leave when they have excluded an employee for workplace exposure to COVID-19?

Yes. When an employee is excluded by their employer and entitled to exclusion pay, an employer may require the use of 2021 COVID-19 Supplemental Paid Sick Leave before providing exclusion pay.