California’s Covid-19 related legislation did not end with 2020. In the last 60 days, the State has passed at least two critical pieces of legislation affecting employers.
Covid-19 Paid Sick Leave
Employers with more than 25 employees (excluding independent contractors) are now required to provide employees up to 80 hours of Covid-related sick leave in addition to paid sick leave already mandated by California’s Healthy Workplaces, Healthy Families Act. This Covid-19 Paid Sick Leave (“Covid PSL”) is owed when a covered employee is unable to work or telework for any of the following reasons:
- The employee is subject to a quarantine or isolation period related to Covid-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to Covid-19;
- The employee is attending an appointment to receive a vaccine for protection against contracting Covid-19;
- The employee is experiencing symptoms related to a Covid-19 vaccine that prevent the employee from being able to work or telework;
- The employee is experiencing symptoms of Covid-19 and seeking a medical diagnosis;
- The employee is caring for a family member who is subject to a quarantine or isolation period related to Covid-19 or has been advised by a health care provider to self-quarantine due to concerns related to Covid-19;
- The employee 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.
Though the law was only recently enacted, it has retroactive effect. As such, employees who took an unpaid or lesser-paid leave after January 1, 2021 for a qualifying reason may request payment at the rates required by the new statute, which cap out at $511/day and $5,110 total. Such requests can be verbal or in writing and employers generally are not permitted to request medical certification supporting the need for Covid PSL.
In addition, the new law comes with a record-keeping requirement. While employers are already required to inform employees of their sick leave balance on their paystubs or a concurrently issued writing, they must now also inform employees of their Covid-19 PSL balance, which must be maintained in a separate bank from ordinary sick leave. Calculating the remaining balance is relatively straightforward for fixed schedule employees but tricky for employees who work variable schedules. The new law requires these workers be provided with 14 times the average number of daily hours they have worked for the company—the evaluation period for which varies depending on how long the individual has been employed. Examples of these varying calculations are available here courtesy of the California Department of Labor Standards Enforcement (DLSE): https://www.dir.ca.gov/dlse/FAQ-for-PSL.html. For purposes of the balance information requirement, for employees with variable work schedules, employers can calculate the initial amount of 2021 Covid-19 PSL and note “variable” thereafter.
Employers must post notice of the Covid PSL requirements. The DLSE has issued a model notice available here: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf. Employers are required to make the notice publicly available, either by posting, or, if workers do not frequent a workplace, by electronic dissemination.
Note that the above requirements are generally applicable however, there are certain exceptions and/or additional requirements for employers of firefighters or in-home supportive services providers.
Statewide Right to Recall
As companies commence rebuilding their workforces, certain California employers must now offer laid-off employees first dibs on new work. California’s new right to recall law applies to owners/operators of any hotel, private club, event center, airport hospitality operation, airport service provider, or enterprise that provides building services (i.e., janitorial, building maintenance, or security) to office, retail or other commercial buildings.
Effective immediately, within five business days of establishing a position, these employers must offer their laid-off employees, in writing, all positions that become available for which the laid-off employees are qualified. A laid off employee is defined as “any employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the Covid-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason due to the Covid-19 pandemic.”
If more than one employee is entitled to preference for a position, the employer must offer to the position to the laid-off employee with the greatest length of service based on the employee’s date of hire with the company. Laid off employees must be given at least five business days from the date of receipt within which to accept or decline an offer.
Any employer that declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone else must provide the laid off employee written notice within 30 days, stating the length of prior service of the employee hired along with all reasons for the decision. The new law does not expressly state what information the company must provide when an individual who has never worked for the company is selected over a laid-off employee, though presumably the company would need to disclose the selected employee’s lack of prior employment with the hiring entity.
Records of all communications required under this new law must be retained by the company for at least three years. The law is scheduled to expire on December 31, 2024.
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Because legal development pertaining to Covid-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.