In response to the coronavirus epidemic, congress passed the Families First Coronavirus Response Act (FFCRA). This act required covered employers to provide employees with paid sick leave or extended family and medical leave for reasons related to COVID-19. Originally, these benefits expired on December 31, 2020 but they have been extended through September 31, 2021.
The FFCRA requires that employers provide employees certain COVID-19 related benefits, including:
- Two weeks, or up to 80 hours, of sick leave at the regular rate of pay if they are unable to work due to being quarantined pursuant to a local, state, or federal government order or advice of their healthcare provider or they are experiencing COVID-19 symptoms and they are seeking a medical diagnosis;
- Two weeks, or up to 80 hours, of paid sick leave at two-thirds of the employee’s regular rate of pay when they are unable to work due to:
- the need to care for an individual who is subject to quarantine pursuant to a local, state, or federal order or advice of their healthcare provider;
- the need to care for a child under 18 years of age whose child care provider is unavailable or closed due to reasons related to COVID-19; or
- They are experiencing a substantially similar situation as described by the Secretary of Health and Human Services; and
- Up to an additional 10 weeks of extended paid family and medical leave at two-thirds their regular rate of pay if they:
- have been an employee for at least 30 calendar days; and
- are unable to work because of a need to care for a child whose child care provider or school is unavailable or closed due to reasons related to COVID-19.
It is important to note that the FFCRA requires employers to provide 12 total weeks of emergency FMLA leave to an employee who cannot work due to COVID-19 related reasons. The first two weeks, however, are unpaid, which makes the requirement only 10 weeks of paid leave. The employee is able to utilize two weeks of paid sick leave or other available leave to offset that two weeks of unpaid leave.
The FFCRA applies to specific public employers as well as private employers that have fewer than 500 employees. Many federal government employees are covered by Title II of the Family and Medical Leave Act that was not amended by the FFCRA and they are, therefore, not covered by the expanded provisions. These federal employees are, however, covered by the paid sick leave provision.
A small business which has less than 50 employees may be exempt from the requirement to provide leave because of daycare or school unavailability or closings if doing so would jeopardize the viability of the business. If an employee is covered, however, they can make an oral or written request to their employer for COVID-19 related sick leave.
The State of California is following the same essential leave availability, as provided by the Department of Industrial Relations. Pursuant to California COVID-19 pay requirements, a covered employee is entitled to take leave if they are:
- Caring for themselves because they are:
- subject to quarantine as defined by an order or the guidelines of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace;
- have been advised to quarantine by a healthcare provider; or
- are experiencing COVID-19 symptoms and are currently seeking a medical diagnosis;
- Caring for a family member who is:
- subject to a quarantine or has been advised by a healthcare provider to quarantine due to COVID-19; or
- caring for a child whose place of child care of school is unavailable or closed due to COVID-19; or
- Taking vaccine-related actions, such as:
- attending a vaccine appointment; or
- are unable to work or telecommute due to vaccine-related symptoms.
In California, a non-exempt employee must be paid the highest of the following for each hour of leave:
- Their regular rate of pay for the work week in which leave is taken;
- State minimum wage;
- Local minimum wage; or
- The average hourly pay for the previous 90 days, not including overtime pay.
In California, this pay amount is not to exceed $511 per day or $5,110 total for COVID-19 supplemental paid sick leave in 2021.
What is OSHA and How Does it Affect COVID-19 Pay Requirements in California?
The United States Department of Labor Occupational Safety and Health Administration (OSHA) is a federal agency which helps to ensure safe and healthy working conditions by enforcing workplace laws and standards. OSHA helps both employers and employees by protecting work-related health and safety and receiving complaints regarding businesses which may have hazardous conditions.
Employers must comply with OSHA standards or they are subject to penalties and fines. OSHA has provided emergency temporary standards (ETS) for workplaces in response to the COVID-19 pandemic. In general, these apply to all employers except for those whose employees are telecommuting.
OSHA requires employers to take certain steps to prevent the spread of COVID-19 in the workplace, which include, but are not limited to:
- Developing a written COVID-19 prevention program;
- Excluding employees who have been exposed or currently have COVID-19 from the workplace until they are no longer an infection risk;
- Following return to work criteria; and
- Keeping records of COVID-19 cases and reporting serious illnesses to OSHA and the local health department.
These OSHA requirements may affect COVID-19 pay requirements in California, especially in cases where an individual is required to stay home from the workplace due to infection or exposure.
If an employee is excluded from the workplace, they should receive exclusion pay if they were not assigned to telecommute during that time and they did not receive disability payments or workers’ compensation temporary disability payments during the exclusion period. If the employee did not receive those benefits, pursuant to OSHA COVID-19 pay requirements, an employer is required to provide sick leave and pay as discussed above.
What if a California COVID-19 Pay Requirement Was Violated?
If an employee believes that their rights were violated because of a COVID-19 related issue or a COVID-19 related telecommuting issue, they should contact a lawyer as soon as possible. Even if an employee is working from home, they are still considered an employee and they retain the same rights as they have in the workplace.
The laws regarding COVID-19 and the workplace and constantly changing and being updated. This includes the legal remedies which may be available when an employee’s rights are violated related to a COVID-19 issue. Because of this, it is essential to seek the advice of an attorney because an attorney is best equipped to be aware of the legal updates and current available remedies.
In California, an employer is prohibited from discriminating or retaliating against a non-exempt employee who is requesting or using their COVID-19 supplemental paid sick leave. If an employee experiences these issues in California, they can file a claim with the Labor Commissioner’s Office.
Are There Any Legal Remedies Available for Me?
There may be some legal remedies available if an employer violates a mandatory paid sick leave law. If a violation occurs, the employee should notify the Human Resources department, if one is available. They will likely be required to exhaust all available administrative remedies prior to commencing any legal action.
An employee can also report their issue to the Wage and Hour Division or the Equal Employment Opportunity Commission (EEOC). If it is not possible to reach a satisfactory resolution using these methods, the employee may be permitted to file a civil lawsuit.
Should I Hire a Lawyer?
It is very important to have the assistance of a worker’s compensation lawyer in California for any issues you are facing related to California COVID-19 pay requirements. An attorney can provide advice to both employers and employees regarding these issues as well as local paid sick leave laws.
Your lawyer can assist you if you are required to file a claim when your employer fails to provide the paid sick leave to which you are entitled. Your lawyer can also assist you if it becomes necessary to file a civil lawsuit against an employer and will represent you during any court appearances.