UPDATED JANUARY 7, 2021
CSPSL sunset on December 31, 2020, however, this may not mean the end.
As drafted, Assembly Bill 1867 (AB 1867) that mandated supplemental paid sick leave for employees of companies with more than 500 employees, was set to sunset on December 31, 2020 or upon the expiration of any extension of Emergency Paid Sick Leave under FFCRA (Families First Coronavirus Rights Act). Under the Consolidated Appropriations Act (CAA) FFCRA and its provisions were not mandated to extend but rather can be extended voluntarily with tax credit available through March 31, 2021, thus calling an end to CSPSL (in theory).
We provide the caveat of “in theory” because employers should proceed cautiously. The California Department of Industrial Relations (DIR) contemplates:
“[A]n employee who exhibited symptoms and was recommend to isolate on December 28, 2020 may continue to utilize the SPSL they would be entitled to even if that isolation is required to extend into 2021 and be paid for the time according to the requirement of SPSL law.”
In line with the DIR’s contemplation, it is important to note that after December 31, 2020 no employee may begin receiving CSPSL, however, employees that have already started the use prior to January 1, 2021 may continue to take the leave they are currently on, even if that entitlement extends past the December 31st date.
Remember, we are not lawyers (we just play them on TV) and prior to decisions on leave approval, denial and any compensation associated with it, employers should consult with experienced California employment-law counsel.
A parting thought, with a new administration and incoming Congress, there may be many more changes on the horizon as it relates to FFCRA and the many leaves that are associated with it. TPPS is here to help guide you, answer your questions and assist in navigating 2021.
[ORIGINAL BLOG POST – 10/2020] On September 9, 2020 Governor Newsom signed Assembly Bill 1867 (AB 1867) that mandated supplemental paid sick leave for employees of companies with 500 or more employees effectively filling the gap left open by the Families First Coronavirus Act (FFCRA) and the Executive Order signed by Newsom on April 22, 2020 that only applied to essential food workers. The sick leave portions of the law are effective immediately and employers must make the leave available no later than September 19, 2020. The leave is set to expire on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by FFCRA, whichever date is later.
Companies in the private sector with 500 or employees or public entities that employ health care providers or emergency responders and had previously elected to exclude these employees from emergency paid sick leave under FFCRA.
Employee is entitled to supplemental paid sick leave at an hourly rate equal to the highest of the following:
- Employee’s regular rate of pay for the last pay period;
- State minimum wage; or
- Local minimum wage.
It is important to note that:
- Employers are not required to pay more than $511.00 per day and $5,1100.00 aggregated total.
- Employers cannot require an employee to use any other paid or unpaid leave, paid time-off, or vacation time in lieu of, or before this supplemental leave is made available.
Leave Length Requirements
- Full-time Employees (employees scheduled to work an average of at least 40 hours per week in the two weeks prior to the leave is taken are entitled to 80 hours of supplemental paid leave;
- Part-time Employees (with a normal weekly schedule) are entitled to leave that is equal to their normally scheduled work week over a two-week period;
- Part-time Employees that are variable hour or do not have a set schedule are entitled to take 14 times the average number of hours that they have worked each day in the previous six months. If they employee has been with the company for less than six months but more than 14 days, the number of hours should be calculated over the entire period they have been employed. If the employee has worked 14 days or less, they are entitled to leave equal the total hours worked.
If an employer has already provided leave dating back to March 4, 2020 that align with the law but has not fully compensated the employee based on the required pay, the employer can retroactively pay the employee any difference and the hours/leave previously granted will count towards the total number of hours owed.
A covered Employer is required to immediately grant the leave upon written or oral request if the employee cannot work due to one of the following:
- Employee is subject to a local, state, or federal COVID-19 quarantine or isolation order;
- Employee is advice by a health care provider to isolate or quarantine due to COVID-19; or
- Employee is prohibited to work at the Employer’s direction due to concerns related to COVID-19
Employers will need to update wage statements for any employee that is granted the supplemental paid sick leave to reflect these amounts and make this available for the employee. This will be required to be delivered to the employee for their “next full pay period following the date of enactment”;
Employers are required to display a poster that contains the information on the Supplemental Paid Sick Leave. If employees are not frequenting the normal operation center, employers are required to disseminate the notice electronically;
It is important to note that the Act does not contain a Collective Bargaining Agreement (CBA) exemption; and
The law also includes a rebuttable presumption of retaliation.
California Department of Industrial Relations has posted an FAQ on CSPSL that can be found here.
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