California Employee Leave During the Coronavirus/COVID-19 Pandemic
As the Coronavirus/COVID-19 pandemic persists, California employees have several options for exercising the complex web of employee rights regarding protected leave. However, not every right is clear. Further, some are only temporary. This article provides a brief overview of some of the protected leave rights California employees are entitled to during the Coronavirus/COVID-19 pandemic.
Are California Employees Able to Use Paid Sick Leave due to COVID-19/Coronavirus Related Illness?
Yes. Where the employee has available paid sick leave, the employer is obligated to provide sick leave and compensate the employee. California Labor Code § 245, Et. Seq. California employees may use accrued paid sick leave if they have contracted the Coronavirus/COVID-19, for Coronavirus/COVID-19 diagnosis, care, or treatment, or for preventative care for themselves or a family member. Id.
Are California Employees Permitted to Use Paid Sick Leave When Self-Quarantining Due to Potential Exposure to COVID-19?
Yes. A self-imposed quarantine resulting from potential exposure to the Coronavirus/COVID-19 falls under preventive care. The employee is entitled to exercise their right to paid sick leave.
What Happens Where A California Employee Does Not Qualify For or Exhausts Paid Sick Leave During A COVID-19/Coronavirus Related Leave?
The employee may use vacation or paid time off leave, where the terms of either leave provide for such leave under the circumstances. Alternatively, the employee may use FMLA leave, or Emergency Paid Sick Leave Act(“EPLSA”) leave.
What Does the Emergency Paid Sick Leave Act Provide?
Under EPLSA, qualified full-time employees have up to two weeks of paid leave. EPSAL creates temporary emergency paid sick leave accessible under six circumstances:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- A health care provider has advised the employee to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation COVID-19-related order or has been advised by a health care provider to self-quarantine due to COVID-19-related concerns;
- The employee is caring for their son or daughter where the school or daycare has been closed, or the child care provider of such son or daughter is not available, due to COVID-19 precautions;
- The employee is suffering a “substantially similar condition” as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Presently, EPSLA is set to expire on December 31, 2020, unless extended. Click here to learn more about your EPSLA rights.
What Does the FMLA Provide During the Coronavirus/COVID-19 Pandemic?
Effective April 1, 2020, the expanded FMLA establishes a new reason for paid FMLA leave. Under the expanded FMLA leave, qualifying employees are eligible for up to twelve weeks of paid leave at two-thirds the employees’ regular pay rate when they cannot work for one of the following reasons:
- A bona fide need to leave to care for a child whose school or child care provider is closed; or,
- The employee is unavailable for reasons related to the Coronavirus/COVID-19.
Please be advised that the leave available under expanded FMLA is undifferentiated with normal FMLA leave. Under the FMLA, employees are entitled to twelve weeks of leave during a twelve-month cycle set by the employer. This means that an employee’s eligibility for expanded FMLA is dependent on how much leave they already took during the twelve-months set by the employer. Generally, employees that have already exhausted their FMLA for the twelve-months are not eligible for expanded FMLA leave.
Please note that paid sick leave, including leave under EPLSA, does not apply to FMLA leave.
Can California Employees Take Leave Following A Coronavirus/COVID-19 Related School or Daycare Shut Down?
Yes. In addition to the expanded FMLA’s entitlement, California employees employed at a jobsite with at least twenty-five employees, the California Family School Partnership Act allows employees to use unpaid job-protected leave for school-related emergencies, such as a school or daycare closure. Specifically, the law provides up to 40 hours per year of protected leave. Please note that employers may require California employees to use vacation time or paid time off benefits ahead of exercising their right to unpaid leave but cannot mandate that employees initially use paid sick leave.