February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Employers Receive Clarification From California Labor Commissioner Through Updated FAQs regarding 2021 Supplemental Paid Sick Leave

The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite a FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employee’s leave request qualified under the statute.  Fortunately, the Labor Commissioner has updated its FAQs to provide further clarity to employers.

Reasons for Leave

The first clarification pertains to leave for childcare purposes. The statute states that eligible employees may take supplemental paid sick leave if “caring for a child…whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.” This wording led to confusion for employers since individuals were claiming the language required supplemental sick leave pay if their school or childcare facility had been closed for a prolonged period of time and not due to a sudden COVID-19 closure due to an issue on the premises.

The Labor Commissioner has stated this language means a child’s school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.  This does not include caring for a child whose school or daycare was closed before January 1, 2021.  If the school or daycare was closed on or after January 1, 2021, it must have been due to a closure, or partial closure, making the care unavailable due to COVID-19 on the premises.

The next clarification is whether an employee is eligible for supplemental paid sick leave if someone the employee lives with is exposed, experiences symptoms, or is diagnosed with COVID-19. The Labor Commissioner states that an eligible employee may use supplemental paid sick leave if the employee is caring for a family member either because the family member has been recommended by a medical professional to stay home due to COVID-19 or the family member is subject to a COVID-19 related quarantine or isolation period.

Requests for Leave

The Labor Commissioner has clarified that an employer must provide supplemental paid sick leave to an eligible employee “immediately upon the oral or written request” of the eligible employee.

Relation to Other Laws

The Labor Commissioner specifies that the recently passed supplemental paid sick leave is different than both the federal Families First Coronavirus Response Act (FFCRA) and the 2020 California COVID-19 Supplemental Paid Sick Leave. The new law provides an additional bank of time for COVID-19 related reasons.

The Labor Commissioner also notes in the FAQs that federal law currently provides tax credits for employers with less than 500 employees who provide COVID-19 related paid sick leave voluntarily. The Labor Commissioner directs employers to the  Internal Revenue Service FAQs for more information on the federal tax credit.

Jackson Lewis P.C. © 2023National Law Review, Volume XI, Number 113

About this Author

Kate L. Brown Employment Attorney Jackson Lewis

Kate L. Brown is an Associate in the San Francisco, California, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Jonathan A. Siegel, Labor, Employment Attorney, Jackson Lewis, Law Firm

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful...