New Mandatory Sick Leave and New CDC Guidance On Vaccinations and The Workplace

Client Alert

March 2021

California’s new supplemental sick leave requirement, effective March 29, 2021 and yet retroactive to January 1, effectively supersedes the FFCRA provided sick leave for most employments, adding broader supplemental sick leave benefits.

Many elements of the new COVID-related sick leave requirements remain the same as the prior 2020 law, but the provisions now cover employers, public and private, with more than 25 employees, and expands the bases for employees to claim paid sick leave, including time to receive vaccinations, and new requirements for calculating employees’ pay while on leave. Also discussed is the CDC’s updated guidance regarding vaccinations and the workplace. The guidance discusses how vaccines can be offered to employees, how to treat vaccinated employees, and some general best practices.

California mandates supplemental paid sick leave through September 30, 2021
New sick leave eligibility is broader than under previous supplemental sick leave law
Mandate is effective March 29, 2021, but retroactive to January 1, so employers should review their policies for compliance
CDC issues guidance regarding vaccinations and the workplace and general best practices

California Mandatory Sick Leave Effective March 29, 2021

California Governor Gavin Newsom signed Senate Bill (SB) 95, which requires covered employers to provide employees with supplemental paid sick leave (SPSL) for various COVID-related absences in addition to paid time off benefits employees are otherwise provided by law or company policy, like company provided sick leave or vacation and Cal/OSHA mandated pay. These provisions will apply retroactively to January 1, 2021, and are effective through September 30, 2021, though technically they do not become effective until March 29, 2021 – 10 days after the governor signed SB 95.

The requirements are similar to the SPSL for employers of 500 or more employees implemented in California in 2020, however, leave entitlements and covered employers are broader so employers who had a policy in 2020 will need to make some adjustments. Below we explain some of the key changes and questions employers may have. We suggest reaching out to your legal counsel if you need to implement a SPSL policy or update your previous policy for 2021.

Which employers are covered?

The 2021 SPSL entitlement will apply to private and public employers with 26 or more employees. The previous 2020 SPSL requirement only applied to private employers of 500 or more employees. Employers with 25 or fewer employees are instead covered by the Federal paid sick leave provisions under the Families First Coronavirus Act (FFCRA), which employers can opt to provide but doing so is voluntary. This change results in the bases for California sick leave coinciding with the bases for FFCRA leave so employers of 26-500 employees may be able to claim tax credits for amounts paid to employees on sick leave if the employee has available paid sick leave under the FFCRA. There were some recent changes to FFCRA tax credits and entitlements discussed in our last alert. Employers should be aware of these changes so they can take advantage of the tax credits if they are eligible.

Which employees are eligible for leave?

The 2021 SPSL applies to all employees, part time and full time.

When is an employee eligible for leave?

Employees who are unable to work or telework due to the following reasons, which are broader than the previous entitlement, can use SPSL:

Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state, or local orders or guidelines;
Employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19;
Employee is attending an appointment to receive a COVID-19 vaccine;
Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
Employee is caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19; and
Employee is caring for a child whose school or place of care is closed or otherwise unavailable on the premises for reasons related to COVID-19.

The requirement to provide SPSL remains in effect through September 30, 2021. If an employee is using SPSL on September 30, however, and the absence would continue past September 30, the employee gets to continue using available SPSL for that absence.

How much leave does each employee receive?

The calculation for how much leave employees receive is the same as the 2020 SPSL requirement. All employees will receive a new entitlement to supplemental paid sick leave regardless of whether they exhausted their supplemental leave in 2020. Additionally, any hours an employee has left over from 2020 will not carry over into 2021.

For 2021, full time employees receive 80 hours if either their employer considers them to work full time or, on average, they worked or were scheduled to work at least 40 hours per week in the two weeks preceding the date they took leave. Part-time employees are subject to separate calculations based on their work schedule and how long they have been with the employer.

Part-time employees with a set weekly schedule receive the total number of hours they are normally scheduled to work over two weeks.
Part-time employees who work a variable number of hours, whose tenure is six months or more, receive 14 times their average daily shift length. The average daily shift length is calculated based on the number of hours they worked each day in the six months preceding their leave date. If the employees has only worked between 15 days and six months, use this same calculation but over their entire period of employment. Employees who worked 14 days or fewer receive leave hours equal to their total number of hours worked.

How much should I pay an employee on leave?

Under 2021 SPSL, employers must pay non-exempt employees the highest pay rate determined by either calculation below or the state or local minimum wage, whichever is highest.

The employee’s regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek; or
The employee’s total wages, not including overtime premium pay, divided by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

For exempt employees, employers calculate SPSL in the same manner they calculate wages for other forms of paid leave.

Regardless of the employees’ exempt or non-exempt status, employers need not pay more than $511 for each day an employee uses SPSL, or more than $5,110 overall. Employees who are normally paid wages in excess of this amount may elect to use other available paid leave to supplement this amount so they are fully compensated during the absence.

Can I require employees to use SPSL if they are eligible?

No. Employees alone determine how many SPSL hours they need or want to use. Employees get to choose whether they will use SPSL or some other paid or unpaid leave benefit their employer provides, or the law requires, to cover an absence.

However, there is one exception. If the Cal-OSHA COVID-19 Emergency Temporary Standards (ETS) or Cal-OSHA Aerosol Transmissible Diseases Standard (ATDS) require an employer to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure, employers may require an employee to first exhaust SPSL. We have discussed these requirements for excluding employees from the workplace and maintaining their earnings in a prior alert, which can be found here.

How can employees request this leave?

Employees can use 2021 SPSL immediately when the law takes effect if they make an oral or written request to use leave. Employers should only ask for reasonable supporting verification or documentation for the leave if they have evidence that an employee is abusing their entitlement to leave.

What if I already paid some employees for leave this year?

Employers may be entitled to offset an employee’s entitlement to leave if they have already paid an employee another supplemental benefit for leave taken on or after January 1, 2021. The benefit must have been payable for the same covered reasons listed above and compensated employees in an amount equal to or greater than the amount of pay the law requires. If these requirements are met an employer may elect to count those hours towards the number of hours of SPSL.

If any supplemental benefits were already paid for a covered reason at a lower amount, an employer must true-up the pay to what the 2021 SPSL requires to make sure they qualify for the offset.

It is important to note that any amounts paid must have been due to a supplemental benefit, so employers cannot count normal paid sick leave employees used, or amounts paid under the 2020 SPSL. But employers can offset paid leave they provided per the FFCRA after January 1, 2021, if that leave was provided to an employee for any of the California law’s covered reasons. So employers who opted to provide FFCRA leave in the first quarter may catch a break.

There’s more?

The State Labor Department has made model poster publicly available, which employers must conspicuously display in their workplaces. If employees do not frequent a workplace, employers can distribute the poster electronically, e.g., by email.

2021 SPSL entitlements must also be on paystubs or other written notices employees receive on payday. However, the paystub requirement is not enforceable until the next full pay period following the date that the law takes effect (March 29, 2021). For part-time, variable hour employees, employers may meet this requirement by performing an initial calculation (described above) of SPSL available and indicating “(variable)” next to that calculation, which employers will need to update when employees request to use SPSL.

What should I do next?

The law does not take effect until March 29, 2021, however that doesn’t leave much time to examine your policies and practices. We suggest immediately reviewing your policies and paystubs to ensure compliance and determine whether you may be able to take advantage of the tax credits offered under the FFCRA. You should also consider reaching out to legal counsel to discuss the best way to proceed.

CDC Issues New Vaccine Guidance Applicable To Employees

The CDC released guidance for employers considering how the COVID-19 vaccine will affect their workforce. The guidance focuses on mandatory vaccination programs, reopening the workplace when employees have received the vaccine, logistical options for workforce vaccinations, and some general best practices.

Mandatory Vaccination Programs

Consistent with the EEOC and DFEH approvals of mandatory vaccination programs, which we discussed in our previous Alert, the CDC acknowledges that mandatory vaccinations are permissible under federal law if employers provide exemptions for (1) people who may be at risk of an adverse reaction to the vaccine due to a disability, and (2) people who object to the vaccine due to a sincerely held religious belief. The guidance also notes that employers should consult state and local law before requiring vaccines as they may impose different requirements. We discussed those separate requirements and considerations in our previous Alert.

Reopening The Workplace

After employees are fully vaccinated, which is two weeks after receiving the final dose of the vaccine, they may be able to start doing some things they had stopped doing because of the pandemic. However, in work settings, employers should continue to follow applicable state guidance, including all prevention measures required by the Cal/OSHA Emergency Temporary Standards. Cal/OSHA has stated that it will update its Emergency Temporary Standards to include provisions applicable to employees who have received the vaccine, but those revisions are still forthcoming. In the meantime, the Emergency Temporary Standards apply regardless of whether the employee is vaccinated.

The CDC also recommends considering employee vaccinations when conducting a thorough assessment of the workplace to identify potential workplace hazards related to COVID-19. Widespread vaccination of employees can be one consideration for restarting operations and returning to the workplace. Other considerations for returning to the workplace include:

The necessity for employees to physically return to the workplace and whether telework options can be continued
Transmission of SARS CoV-2, the virus that causes COVID-19, in the community (how many infections there are and how fast it’s spreading)
The ability of employees to practice social distancing and other prevention measures, like wearing masks, when in the workplace
Local or state mandates for business closure restrictions

Workforce Vaccination Options

The CDC’s guidance lists several factors for employers to consider when determining how to vaccinate their workforce. Employers who have a large number of workers with predictable schedules, the ability to enroll as a vaccination provider or engage an enrolled vaccination provider, and enough space to set up a vaccination clinic while still maintaining social distancing, are well-suited for an on-site vaccination program. Conversely, the CDC recommends an off-site vaccination program for small- or medium-sized employers that have a mobile workforce, workers with highly variable schedules, or a majority of workers who would prefer vaccination in a community clinic. The decision whether to offer vaccines on-site may effect whether any adverse effects of the vaccine will be covered by workers’ compensation. We suggest contacting your workers’ compensation carrier before ultimately deciding whether to hold vaccinations on site.

For employers who choose to implement an on-site vaccination program, the CDC recommends using existing occupational health clinics, establishing an employer-run temporary vaccination clinic, or using mobile vaccination clinics that can be brought to the workplace. Employers hosting an on-site program should contact their local health department for guidance and seek input from employees, their workers compensation carrier, and labor representatives. The guidance states that workplace vaccination clinics should offer vaccination to all workers—including independent contractors and temporary employees—at no charge and during work hours. Nevertheless, employers should also develop a plan to prioritize who gets vaccinated first if the vaccine supply is too low to vaccinate all eligible workers. Employers must also ensure that their on-site vaccination provider is prepared to manage allergic or adverse reactions to the vaccine. Additionally, there are separate requirements for what medical information may be requested when an employer is administering the vaccine. We discussed these concerns in our previous alert, and generally employers should refrain from asking any questions related to family medical history, genetic information, or questions which would elicit information about an employee disability or sincerely held religious belief. If the pre-screening questions require receiving this information, then we recommend having a third party medical provider administer the vaccine and ask any necessary prescreening questions.

The CDC recommends that employers who choose to vaccinate their workforce off-site do so through clinics at community locations, pharmacies, hospitals, and healthcare provider offices. The CDC further recommends that employers take steps to encourage off-site vaccination, such as by allowing employees to get vaccinated during work hours or by providing paid leave for employees to get vaccinated; supporting transportation to off-site clinics; informing employees about what they will need to bring to their vaccination appointment; educating employees about vaccine eligibility; and assisting eligible employees with making their vaccine appointments. We recommend contacting your legal counsel when deciding how to encourage employees to receive the vaccine. There are some wage and hour and discrimination concerns that may create unwanted liability which we discussed in our prior alert.

Best Practices

Whether offering vaccination on or off-site, the CDC recommends that employers follow certain best practices regarding COVID-19 vaccination, including:

offering flexible, non-punitive sick leave options for employees who experience signs and symptoms after vaccination;
allowing time for employees’ vaccine confidence to grow over time;
for on-site vaccination programs, offering employees more than one opportunity to get vaccinated,
for off-site vaccination programs, providing paid leave and transportation support; and
asking organizations and individuals who are respected within the employee community to help build vaccine confidence.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

Labor and Employment Practice Group

Jeff Dinkin

805.730.6820

jdinkin@stradlinglaw.com

Jared Speier

805.730.6804

jspeier@stradlinglaw.com

Intellectual Property Practice Group

Steven Hanle

949.725.4126

shanle@stradlinglaw.com