In March 2021, the California legislature adopted, and Governor Newsom signed, Senate Bill (SB) 95.[1] This law requires employers to provide up to 80 hours of COVID-19 Supplemental Paid Sick Leave (SPSL) to their employees in the event that an employee is not able to work or telework for certain reasons related to COVID-19. However, SPSL expires on September 30, 2021.[2] While employers were provided with the option to extend Federal Emergency Paid Sick Leave Law (EPSL) this year in exchange for payroll tax credits, this benefit also expires on September 30, 2021.
This bulletin discusses the legal obligations of California nonprofits, including private schools, in light of the imminent expiration of SPSL. It also provides guidance for how to address COVID-19 related leaves when SPSL is not an option.
An Employee Using SPSL on September 30, 2021 Must be Permitted to Continue Using it
While SPSL expires on September 30, 2021,[3] there is an obligation to continue SPSL leave for employees who are already using it. For example, if an employee were using SPSL on September 30, the employer must allow the employee to continue to use SPSL until the employee either no longer qualifies for the leave or the leave is exhausted.[4]
Employee Leaves Still Available for COVID-19 Related Reasons
Even without SPSL, other leaves are still available for employees.
Sick Leave
Employees should be able to use their regular paid sick leave for many COVID-related reasons. Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member. The Department of Industrial Relations (DIR) has opined that preventative care may include self-quarantine as a result of potential exposure to COVID-19.[5] Moreover, in some counties and cities there are still COVID-19 Emergency Paid Sick Leave Ordinances in effect.[6]
School Closures
California Labor Code Section 230.8 entitles employees of employers with 25 or more employees to take up to 40 hours off work each year for their children’s school activities. The statute specifically includes the closure or unexpected unavailability of the school or child care provider, and situations where the child has been excluded from school or a childcare facility (such as when a child is required to quarantine). California Labor Code Section 230.8 states that employees must be permitted to utilize existing vacation, personal leave, or compensatory time off for these purposes.
Vacation and Personal Time
Employers should also allow employees to use vacation time and personal leave for COVID-19 related reasons if they have exhausted sick leave.
FMLA/CFRA Leave
Employees who need leave due to COVID-19 reasons may qualify for other types of leave. For example, if an employee has or is caring for a family member with long-haul or serious COVID-19 related illness, the employee may qualify for leave under the Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA).
Employers Must Continue to Provide Exclusion Pay Under the Cal/OSHA Regulations When Employees are Excluded Due to Close-Contact COVID-19 at the Workplace
The Cal/OSHA COVID-19 Regulations[7] require that employers exclude employees from the workplace when they have COVID-19,[8] when an unvaccinated employee has close contact exposure to a COVID-19 case, or when a vaccinated employee has close contact exposure to a COVID-19 case and experiences symptoms associated with COVID-19.[9] During the exclusion period, the regulations require that employers maintain employees’ earnings, benefits, and wages if the close contact exposure was work-related.[10] Employers were permitted to run an employees’ SPSL in order to provide for their continued compensation.[11] Once SPSL expires, however, employers will still be required to pay employees their regular wages during the exclusion period.
The Cal/OSHA COVID-19 Regulations allow employers to use employees’ regular paid sick leave in order to provide for their continued compensation during the exclusion period, “to the extent permitted by law.” However, in Frequently Asked Questions (FAQ) guidance published by the Department of Industrial Regulations (DIR)[12], the Department clarified that employers can only require employees to use sick leave that is “separate and in addition” to the paid sick leave required by California’s Paid Sick Leave law in order to provide for their continued compensation during the exclusion period. Many cities also have local paid sick leave ordinances in place that require employers to provide sick leave in excess of the minimum amounts required by California law.
In light of the DIR guidance, the cautious approach is for nonprofits not to require employees to use any paid sick leave during the exclusion period. At a practical level, this means nonprofits will need to continue paying employees their regular compensation without drawing down any of their leave banks in the event an employee is excluded from the workplace due to having a close contact exposure to COVID-19 at the workplace.
Another approach is for nonprofits to set up separate sick leave banks that are in addition to the sick leave required by California law or an applicable local paid sick leave ordinance.[13] However, the administrative burden to the nonprofit in creating this separate leave bank may outweigh the benefits.
A third approach is to require that employees excluded due to close-contact exposure at the workplace use their paid sick leave only in amounts the employer has provided in excess of those required by the California Paid Sick Leave law or an applicable local ordinance. There are still risks with this approach given the DIR guidance only authorizes employers to draw down paid sick leave during the exclusion period that is both separate and in addition to the sick leave required by the California Paid Sick Leave law.
Conclusion
The expiration of SPSL creates new uncertainties related to employee leaves. California nonprofits should carefully consider each situation in light of these uncertainties. LCW attorneys have experience advising California nonprofits on the administration of COVID-19-related leaves, and we are ready to help navigate the impending expiration of SPSL.
[1] Sen. Bill No. 95 (2021-2022 Reg. Sess.).
[2] As of this bulletin’s writing, there is no pending legislation that will extend SPSL beyond September 30.[2] This does not mean that the California legislature will not take such action at a later date, but that there is no pending legislation that will do so.
[3] Labor Code, § 248.2, subd. (f).
[4] Labor Code, § 248.2, subd. (f).
[5] See FAQs on Laws Enforced by the California Labor Commissioner’s Office at
https://www.dir.ca.gov/dlse/2019-novel-coronavirus.Htm
[6] For example, the Oakland Emergency Paid Sick Leave Ordinance is in effect through the end of the city’s COVID-19 Emergency Declaration, unless the city council further extends the law.
[7] 8 C.C.R. §§ 3205 et seq.
[8] The Cal/OSHA Emergency Temporary Regulations define “COVID-19 case” as a person who (1) has a positive COVID-19 test; (2) has a positive COVID-19 diagnosis from a licensed health care provider; (3) is subject to a COVID-19-related order to isolate issued by a local or state health official; or (4) has died due to COVID-19, as determined by a local health department or county. (8 C.C.R. § 3205(b)(3).). The regulations obligate employers to exclude all COVID-19 cases from the workplace, as applicable. (8 C.C.R. § 3205(c)(9)(A).)
[9] 8 C.C.R. § 3205(c)(9)(B). The current Cal/OSHA COVID-19 Regulations provide some exceptions to the exclusion requirement for close contact exposures. (See 8 C.C.R. § 3205(c)(9)(B)(1) and (2).)
[10] 8 C.C.R. § 3205(c)(9)(C).
[11] Labor Code, § 248.2, subd. (b)(5).
[12] DIR, COVID-19 Emergency Temporary Standards Frequently Asked Questions (Updated June 18, 2021) <https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#exclusions> (as of September 20, 2021) (“DIR ETS FAQ”).
[13] The California Paid Sick Leave law requires that employees who have been employed at least 30 calendar days receive paid sick leave at either: (1) an accrual rate of at least one hour of sick leave per 30 hours worked, with an accrual cap of no less 48 hours; or (2) the greater of 24 hours or three (3) days of sick leave frontloaded each year. In light of the DIR guidance, nonprofits should not require employees to use California Paid Sick Leave when taking exclusionary leave.
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.