The expiration of the supplemental paid sick leave law does not bring an end to other COVID-19 obligations that employers have to employees.

California’s latest supplemental paid sick leave (SPSL) law, SB 95, which requires certain employers to provide paid leave to employees for qualifying COVID-19-related reasons, expires on September 30, 2021. No legislation has been passed to extend it and there are no bills on the horizon to replace it. This has left employers wondering what, if any, obligations they have if employees are absent for reasons related to COVID-19.

Background

SB 95, designated as emergency legislation, took effect March 23, 2021, but applied retroactively to January 1, 2021. The law applied to both private and public employers of 25 employees or more and provided for up to 80 hours of paid sick leave for eight covered reasons related to the COVID-19 pandemic, including absences due to quarantine or self-isolation, symptomatic employees unable to work, obtaining and recovering from vaccinations and caring for children whose schools or day care facilities were closed due to COVID-19. More information and background on SB 95 can be found in our prior Alert. The law followed the expiration of a previous state supplemental paid sick leave law, applicable to larger employers and certain industries.

What Comes Next?

With the expiration of SPSL in the midst of an ongoing pandemic, employers may wonder what their obligations are now. Employees who have symptoms of COVID-19 or contract the virus, those who need to care for afflicted family members or those facing child care closures due to COVID-19 will undoubtedly require leaves of absence and hope to be paid. Depending on the reason for the absence, employees may be eligible for accrued paid sick leave, required under the Healthy Workplaces, Healthy Families Act. Local paid sick leave laws may require supplemental paid sick leave in some jurisdictions even after SPSL expires. Alternatively, employees may turn to PTO, vacation or other paid leave policies offered by their employers but not mandated by law to fill the void. In some circumstances, employees may be eligible for workers’ compensation benefits for work-related COVID-19 cases. The end of SPSL does not prevent employers from voluntarily continuing to provide special COVID-19 paid sick leave. However, employers are encouraged to consult with their legal counsel regarding the implications before doing so.

Ongoing COVID-19 Workplace Obligations

The expiration of the supplemental paid sick leave law does not bring an end to other COVID-19 obligations that employers have to employees. Under existing Cal/OSHA Emergency Temporary Standards, employers must continue to exclude with pay certain employees who have had close contact with COVID-19 cases in the workplace. Employers may not force the use of paid sick leave, PTO or vacation for that purpose. Employers also remain obligated to pay for testing of certain employees who have had close contact with a COVID-19 case in the workplace and to make that testing available during an employee’s paid time. Employers who require regular testing of employees pursuant to return-to-work policies may also be obligated to pay for the time and expense of that testing under the California Labor Code.

Employers are still required to create written, site-specific COVID-19 prevention programs. They must continue to identify, evaluate and correct COVID-19 hazards, provide engineering and administrative controls, provide respirators to unvaccinated employees, create policies and procedures, and communicate with and train employees. These requirements, which also mandate employers notify employees of potential COVID-19 exposures, report outbreaks to public health officials and provide testing to employees in the event of an outbreak, remain in effect until at least 2023.

Potential for Further Action

While there is no indication that the state Legislature is considering additional supplemental paid sick leave, the possibility remains that a new law could be passed and potentially applied retroactively. The Legislature has already done so once before with paid sick leave. For now, however, employers no longer have this obligation.

What This Means for Employers

The end of SPSL does not mean the end of paid leave obligations for employers. Employers should not automatically dispense with COVID-19-related policies. Now is the time to review and update COVID-19 policies and procedures including, at a minimum, leaves of absence, vaccination and telecommuting. Recommendations to consider include:

• Assessing and updating existing paid sick leave, PTO, vacation, leaves of absence, vaccination, COVID-19 testing and telecommuting policies.
• Evaluating paystubs to make sure they accurately reflect paid sick leave available and used.
• Continuing to track employee absences and leave entitlements even if employees are working from home.
• Evaluating and updating COVID-19 prevention programs.
• Preparing to answer questions from employees who need time off from work and recognize that other non-COVID-specific leave laws may provide protections.
• Consulting with counsel as needed.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.