SB95 came into effect in March of this year, giving 80 hours of COVID-19-related leave entitlements to more employees than prior state legislation and federal law. Specifically, employees of a covered employer were permitted to use the supplementary COVID-19 sick leave under SB95 if they were:
- Subject to quarantine or an isolation period under either order or guidelines of the State Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace (the “relevant bodies”).
- Attending an appointment for a COVID-19 vaccine.
- Experiencing symptoms due to the COVID-19 vaccine.
- Seeking a medical diagnosis due to symptoms of COVID-19.
- Caring for a family member who is subject to an order or guidelines from the relevant bodies or who has been advised to self-quarantine. Family members covered by the legislation are:
- A child (of any age or dependency status), including a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis.
- A parent, including biological, adoptive, or foster parent, step-parent or legal guardian of an employee or employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor.
- A spouse or registered domestic partner.
- A grandparent.
- A grandchild.
- A sibling.
- Caring for a child whose school or childcare is closed due to COVID-19.
These leave entitlements concluded on September 30, 2021 and do not look likely to be reinstated.
Employers can revert to pre-SB95 vacation and sick leave entitlements for employees.
Under California Sick Leave Law, employees are entitled to paid sick leave for COVID-19, including to care for covered family members. The family members covered by the California Sick Leave Law are the same as the family members covered by SB95 (outlined above). You can read more about California Sick Leave Law here.
California employees are also protected by the California Family Rights Act (CFRA). Under the CFRA, eligible employees may take up to 12 weeks unpaid, job-protected leave to care for an immediate family member (child, spouse, or parent) with a serious health condition, or when the employee is unable to work because of a serious health condition. An employee is eligible if they have worked for an employer with 5 or more employees for at least 12 months and for at least 1,250 hours during the 12 months prior to the leave.
COVID-19 may be considered a serious health condition under the CFRA if it involves:
- Any period of incapacity or treatment in connection with, or after inpatient care
- Any period of incapacity requiring absence from work, school, or other regular daily activities, of more than 3 consecutive calendar days.
Employees may be eligible for Paid Family Leave for COVID-19 too. Employers should provide employees with a brochure on Paid Family Leave if they seek time off to care for an ill family member. You can find more information about this leave here.
At the federal level, the Family and Medical Leave Act (FMLA) entitles eligible employees (of employers with 50 or more employees) to take up to 12 weeks unpaid, job-protected leave. The US Department of Labor (DOL) has confirmed that “An employee who works for a covered employer, is eligible for FMLA, and is sick, or is caring for a family member who is sick, with COVID-19 may be entitled to leave under the FMLA under certain circumstances”.
If an employee qualifies for both FMLA and CFRA leave for COVID-19, the leaves will run concurrently.
It is worth noting that the DOL recommends employers adopt a ‘flexible’ approach to workers seeking leave as a result of COVID-19. In particular, they suggest that employers might opt to not ask employees for a doctor’s note for the FMLA leave so as to reduce the burden on the healthcare system. Read more about the FMLA here.
A Note for Employers Who Have Rehired Employees
Employers must reinstate all previously accrued sick leave entitlements to employees rehired within a year, unless the sick leave entitlements were paid out when the employee left. These rehired employees are also permitted to begin using the accrued sick leave on their first day of rehire. The 90 day wait period does not apply to these rehired employees.
COVID-19 Prevention Emergency Temporary Standards Still in Place
While the supplemental COVID-19 paid sick leave entitlements have concluded, the current Emergency Temporary Standards (in place since June 17, 2021) remain in effect. Under the current ETS, employers must:
- Maintain a written COVID-19 Prevention Program.
- Make COVID-19 testing available to employees during work hours at no cost. The time the employee spends traveling to and taking the test is considered hours worked and is compensable.
- Continue to make face coverings available to all employees, regardless of their vaccination status.
- Evaluate ventilation systems to maximize outdoor air and increase filtration efficiency.
- Notify the relevant public health departments if there is an outbreak.
- Notify employees of potential exposure and close contacts.
If you’re uncertain about your current obligations as an employer, get in touch. We’re here to help!
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