Heads up, California employers: there is a new statewide COVID-19 sick leave law you need to be aware of, and San Francisco employers are now subject to an extremely strict anti-retaliation law.
California passed a new COVID-19 paid sick leave law that essentially stops employers from using the Families First Coronavirus Response Act (FFCRA) healthcare provider exemption for employees who request certain types of emergency paid sick leave.
The statewide law is meant to fill in the gaps where employees may lack coverage for 2 work weeks of emergency paid sick leave under FFCRA. It applies to 3 main categories of employees:
So, if you deny someone paid FFCRA leave using the healthcare provider exemption, you are setting yourself up to have to provide paid time off under the California law. And you do not want to do that! A huge benefit to FFCRA is that you get a tax credit for the amounts you pay under it. There is no tax credit for the California time off benefits.
Some good news here: The California state benefit only applies when the employee is unable to work due to their own COVID-19-related circumstances — it does not extend coverage like FFCRA does for when the employee is caring for an ill family member or attending to child care needs.
Therefore, whether you need to provide paid sick leave depends on the reason for the employee’s absence.
If one of your employees is eligible for FFCRA emergency paid sick leave for any of the following three (3) reasons, then, you should grant that leave under FFCRA and apply for a dollar-for-dollar tax credit from the IRS:
If the employee is eligible for FFCRA emergency paid sick leave or emergency paid family leave for either of the following two (2) reasons, then you can still choose to use the healthcare employee exemption under FFCRA and California emergency paid sick leave does not apply at all:
Please note, the DOL has adjusted the definition of what constitutes a healthcare provider employee and it is much more limited now. Also, keep in mind that trying to claim an exemption and denying paid FFCRA leave doesn’t fix the problem of the employee being unable to work.
The new law also requires California employers who have used the health care provider exemption to post this notice in a conspicuous place.
For more information on this new law, the state has provided an FAQ.
The City of San Francisco passed anti-retaliation protections for applicants and employees who are directly affected by COVID-19.
This applies to all employers with employees (including part-time or temporary) within the City limits. There are special rules for independent contractors.
Employers in San Francisco cannot take any adverse action (e.g. discharge, threaten to discharge, demote, suspend, discipline, reduce employee benefits, etc.) against an employee who is absent or requests to be absent from work because the employee:
Adverse action is prohibited even if the employee has already exhausted all available time off under your policies. In addition, any absence due to the above listed reasons cannot count as a “strike” against the employee under your attendance policies.
Importantly, these protections do not in any way inhibit employers from sending employees who are experiencing any signs or symptoms of COVID-19 home. The law also still allows employers to send employees who have confirmed or suspected COVID-19 infections home, and to prevent those employees from returning to work until they are released by a Local Health Officer.
If an employee needs to miss work for any of the reasons listed above, the employer cannot require any documentation, including but not limited to a doctor’s note, except to ask the employee “to identify the general basis” for their absence.
These employee protections have a lot of teeth to them because the law includes a 90-day “rebuttable presumption.”
This is just a fancy way of saying that, if an employer takes an adverse action against an employee within 90 days of the employee requesting or taking emergency time off, the state will assume that you illegally retaliated against the employee. The burden will then be put on you as the employer to prove that the adverse action you took was for a different — and legal — reason.
Simply put, don’t take an adverse action against an employee directly affected by COVID until you have spoken with an employment law or HR expert.
Similarly, employers cannot in any way base their decision on whether to hire an applicant on whether s/he:
Nor can an employer rescind an offer of employment based on any of these reasons. Instead, the employer must reasonably accommodate the applicant by scheduling a later start date.
Please note that this requirement to reasonably accommodate is different from EEOC guidance, which states that employers may withdraw a job offer if an applicant has COVID-19 or symptoms of the disease.
Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state, and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
A Blog Written by CEDR, written by HR Experts to help you run your practice.
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