As of Monday, March 29, 2021, California employers with 25+ employees will be required to provide up to two weeks (maximum of 80 hours) of Supplemental Paid Sick Leave benefits (“SPSL”) to an employee who is unable to work (or telework) for any of the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID, including orders or guidelines issued by the California Department of Public Health (CDPH), the CDC, or a local public health officer;
   
• The employee has been advised by a healthcare provider to quarantine due to COVID, or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
   
• The employee is caring for a family member who is either subject to a COVID quarantine or isolation period (as defined above) or has been advised by a healthcare provider to quarantine due to COVID-19;
   
• The employee is caring for a child whose school or place of care is closed or unavailable due to COVID on the premises (in other words, the closure must be due to someone with COVID having been onsite); or
   
• The employee is attending a vaccine appointment, or cannot work or telework due to vaccine-related symptoms.

Importantly, the recent federal stimulus bill – the American Rescue Plan Act (ARPA) – provides payroll tax credits for all SPSL (or FFCRA) benefits paid by employers through September 30, 2021.  Be sure to specifically designate all SPSL pay as SPSL in order to trigger the payroll tax credits.  If it is designated as regular paid sick leave, payroll tax credits will not apply.

Although the new SPSL mandate goes into effect on March 29th, it applies retroactively to include qualifying time off from January 1, 2021, and continues through September 30, 2021.  This means that SPSL benefits are retroactive back to January 1st if: (a) an employee already took time off due to one or more of the qualified reasons; and (b) the employee requests (verbal or in writing) back pay for any covered reason.  As of March 29th, employers are required to provide SPSL for any covered reason, whether or not the employee requests it.  To be clear, employers are not required to pay SPSL benefits for qualified time off prior to March 29th unless an employee specifically requests it, but employers are required to pay SPSL benefits for qualified time off on or after March 29th, whether or not the employee requests SPSL benefits.

Covered employers are advised to read, and are required to post, the Department of Industrial Relations’ poster: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf.  In addition, please note the following key points:

• Available SPSL benefits must be listed as a separate line item on paycheck stubs (or other written document provided every payday).
   
• Employers may not require healthcare provider certification unless the employer has good cause to suspect that the employee’s reason for taking the time off work is not truthful.
   
• SPSL benefits are available in addition to any leave an employee may have taken under the FFCRA prior to January 1, 2021.  
   
• SPSL benefits for time off because of school or childcare closure due to COVID on the premises is much narrower than under the FFCRA, which applied to time off due to school or childcare closures due to COVID precautions.  In contrast to the FFCRA, SPSL is only available if the school or childcare is temporarily closed because an individual who was onsite has tested positive for COVID.  In addition, SPSL is available for up to a maximum of two weeks rather than 12 weeks as it was under the FFCRA, and is paid at the employee’s regular rate of pay, rather than 2/3rds, as it was under FFCRA.
   
• For part time employees, SPSL is available for up to two weeks based on the number of hours they would normally have worked, and the amount they would normally have earned, in two weeks.
   
• The maximum SPSL benefit is $511 per day and $5,110 in total.  Payments in excess of that amount are not required and will not be subject to the payroll tax credit.

For additional information, please review the Department of Industrial Relations’ FAQ: https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html.  If you still have questions, you may contact our office for assistance.

(c) 2021 Scott & Whitehead