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 Sick Leave 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:
- Employees who work for an employer with 500 or more employees,
- Employees in the food sector, and
- Employees who are denied paid FFCRA leave under the healthcare provider exemption.
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.
Time Off for Their Own COVID-Related Circumstances
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:
- They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- They are advised by a healthcare provider to self-quarantine or self-isolate due to concerns related to COVID-19; and/or
- They are prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19
Time Off for Child Care or to Take Care of a Family Member
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:
- They are caring for an individual subject to a federal, state, or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
- They must care for their child if the child’s school or place of care is closed, or the child’s care provider is unavailable due to public health emergency
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.
San Francisco Anti-Retaliation Law
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:
- Tested positive for COVID-19,
- Is perceived to have been infected with COVID-19, or
- Is isolating or quarantining, or has previously isolated or quarantined due to COVID-19 symptoms or exposure.
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.
Protections for Job Applicants
Similarly, employers cannot in any way base their decision on whether to hire an applicant on whether s/he:
- Tested positive for COVID-19 or
- Is isolating or quarantining, or has previously isolated or quarantined, due to COVID-19 symptoms or exposure.
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.