New Law Series:
COVID-19 Paid Sick Leave and Family/Medical Leave Rights Expanded for Special District Employees
By Gage C. Dungy, Partner and Lars T. Reed, Associate, Liebert Cassidy Whitmore
Following the completion of this year’s Legislative Session, Governor Gavin Newsom signed into law two major bills that expanded the application of COVID-19 paid sick leave and broadened family medical leave of absence rights for California employees, including those employed by special districts. AB 1867 went into effect immediately and expanded the application of COVID-19 supplemental paid sick leave for “emergency responder” and “health care provider” employees that were previously exempt. SB 1383 expanded the California Family Rights Act (CFRA) family and medical leave of absence law to now apply to all public sector employees – regardless of their size – and to expand the reasons qualifying employees can take leave. Below is a summary of both laws and their impacts on special district employers.
AB 1867 – Expands “COVID-19 Supplemental Paid Sick Leave” to Employees Exempted from Leave Benefits under the Federal Families First Coronavirus Response Act (FFCRA)
AB 1867 extends some of the paid leave rights provided by the federal Families First Coronavirus Response Act (FFCRA) to “emergency responder” and “health care provider” employees that employers – including special districts – were allowed to exclude from that law. The bill created a new Labor Code Section 248.1, which provides up to 80 hours of COVID-19 Supplemental Paid Sick Leave for such “emergency responder” and “health care provider” employees exempted from the Emergency Paid Sick Leave (EPSL) benefits under the FFCRA.
As a budget trailer bill, it became law immediately upon the Governor’s signature on September 9, 2020 and its provisions then became effective ten days later on September 19, 2020.
As a result of AB 1867, any special district that utilized its discretionary authority under the FFCRA to exempt either “emergency responder” or “health care provider” employees from receipt of EPSL and did not provide a comparable contractual benefit to such employees, must now generally provide up to 80 hours of COVID-19 Supplemental Paid Sick Leave to qualified employees.
Qualifying Conditions for Receipt of COVID-19 Supplemental Paid Sick Leave
Labor Code section 248.1 now entitles “emergency responder” and “health care provider” employees who have been exempted from the FFCRA’s EPSL paid sick leave benefits to instead receive this COVID-19 Supplemental Paid Sick Leave if the employee is unable to work for any of the following three reasons generally modeled after the EPSL provisions of the FFCRA:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- The employee is prohibited from working by the employer due to concerns related to the potential transmission of COVID-19.
The first two qualifying conditions under AB 1867 mirror those provided for EPSL under the FFCRA. (See 29 C.F.R. § 826.20 (i) and (ii).) The third qualifying condition referenced in Section 248.1 differs from any qualifying condition for EPSL provided under the FFCRA, and now allows an employee to qualify for COVID-19 Supplemental Paid Sick Leave if the employer directs the employee to not report to work for reasons related to COVID-19. In practice, this qualifying condition will most likely apply where an employee has had “close contact” exposure to someone who has COVID-19 but remains asymptomatic after such exposure and has been directed by their employer to self-quarantine and not report to work. In such event, the affected “emergency responder” or “health care provider” employee would qualify for COVID-19 Supplemental Paid Sick Leave because the employer is prohibiting the employee from working due to concerns about the employee’s potential transmission of COVID-19 to other employees.
Importantly, the COVID-19 Supplemental Paid Sick Leave DOES NOT provide any statutory entitlement to supplemental paid sick leave for the other EPSL related reasons under the FFCRA where the affected “emergency responder” or “health care provider” employee is either:
- Caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine; or
- Caring for their son or daughter whose school or place of childcare is closed for reasons related to COVID-19.
As a result, employees who qualify for this COVID-19 Supplemental Paid Sick Leave are only going to receive it for qualifying reasons related to the employee’s own inability to work because of COVID-19.
Benefits Under COVID-19 Supplemental Paid Sick Leave
Just as with EPSL, employees who qualify to receive COVID-19 Supplemental Paid Sick Leave will be entitled up to 80 hours of such paid leave if they are full-time employees and work at least 40 hours per week. Part-time employees will be entitled to a prorated amount of such leave based on their normally scheduled work hours over a two-week period. However, if the part-time employee does not have a normal work schedule, the paid sick leave entitlement will be based on the amount of hours that is 14 times their average daily schedule as determined by hours worked over the preceding six-month period.
In the same manner as EPSL, employees who qualify to receive COVID-19 Supplemental Paid Sick Leave will be compensated for each hour of such leave at their “regular rate of pay” up to $511 per day and $5,110 in the aggregate.
Special Rule for Firefighters: For active duty firefighters who were scheduled to work more than 80 hours in the two weeks preceding the date upon which the employee took COVID-19 Supplemental Paid Sick Leave, AB 1867 provides that such employees will be entitled to COVID-19 Supplemental Paid Sick Leave equal to the total number of hours that the individual was scheduled to work in the preceding two weeks. Therefore, under certain circumstances, a firefighter exempted from receipt of EPSL under the FFCRA may actually qualify to receive more than 80 hours of COVID-19 Supplemental Paid Sick Leave. However, a firefighter is still only entitled to receive up to $511 per day and $5,110 in the aggregate of paid sick leave, regardless of the total number of hours of COVID-19 Supplemental Paid Sick Leave provided.
AB 1867 expressly provides that COVID-19 Supplemental Paid Sick Leave is to supplement, and not run concurrent to, any paid sick leave entitlements provided to employees under Labor Code section 246. Therefore, where an employee qualifies for COVID-19 Supplemental Paid Sick Leave, the employer should not reduce the amount of other statutory paid sick leave that the employee earned or accrued under Labor Code section 246 or by the employer’s more generous sick leave accrual policy.
There are some employers who exempted “emergency responders” and/or “health care providers” from receiving EPSL under the FFCRA, but then provided the exempted employees a comparable benefit to leave and compensation by contractual agreement. For such employers, AB 1867 expressly provides that the employer may attribute the supplemental benefits provided under that agreement for the purpose of satisfying the requirements of Labor Code section 248.1.
For employers that provided unpaid leave for such qualifying conditions, but not compensation, AB 1867 provides that such employers may retroactively provide for such compensation now in order to satisfy their obligations to provide employees both leave and compensation.
In response to AB 1867, special district employers should review to what extent it exempted “emergency responder” and “health care provider” employees from the FFCRA’s EPSL and be prepared to provide this new COVID-19 Supplemental Paid Sick Leave where qualified by an employee. AB 1867 also requires employers to provide notice of this COVID-19 Supplemental Paid Sick Leave to such exempted “emergency responder” and “health care provider” employees through a workplace posting. The California Labor Commissioner has a sample workplace posting on its website at: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf
SB 1383 – Expands CFRA Family and Medical Leave to Smaller Employers and Adds Qualifying Reasons for CFRA Leave
SB 1383 significantly expands the California Family Rights Act (CFRA) family and medical leave law under Government Code section 12945.2 by now applying it to all public agency employees, adding the ability to care for a serious health condition of more family members, and eliminating other previous restrictions on the use of CFRA leave. By doing so, this means that CFRA will now deviate further from the federal Family Medical Leave Act (FMLA) that it otherwise generally ran concurrently with, and could potentially create entitlements for employees under both laws for up to 24 weeks of protected leave in a 12-month period under certain circumstances. SB 1383 becomes effective on January 1, 2021.
CFRA Leave is Now Applicable to All Public Agency Employees.
While CFRA technically applies to all public agencies today, an employee – including public sector employees – could only qualify to take CFRA leave if their worksite had 50 or more employees in a 75-mile radius. As a result, only those public agencies with 50 or more employees in a 75-mile radius would have employees who could qualify for CFRA leave. This matched the FMLA standard, which uses the same definitions.
SB 1383 now eliminates the 50 or more employees in a 75-mile radius definition for an employee to qualify for CFRA leave. The impact on this for smaller public agencies with less than 50 employees, is that they now must provide CFRA leave to all of their qualified employees, regardless of size. In light of SB 1383’s changes, a public employee now only has to meet the following criteria in order to qualify for CFRA leave:
- Worked for the employer for at least 12 months of service (can be nonconsecutive work for employer over a 7-year period, except that any military leave time while employed counts towards this 12 months of service); and
- Worked at least 1,250 hours in the 12-month period prior to taking CFRA leave.
Therefore, any special districts with less than 50 employees who were not previously covered under CFRA are now covered once this law becomes effective on January 1, 2021 and will have to provide qualified employees the following leave entitlements:
- Up to 12 weeks of unpaid family and medical leave for qualifying purposes in a 12-month period;
- Continuation of health insurance benefits at the same level as if the employee had been continuously employed during the CFRA leave; and
- Right to reinstatement to the employee’s same or comparable job position to the extent that the employee would have remained in that position if they had been continuously employed during the CFRA leave.
Because of SB 1383’s expansion of CFRA leave to all public sector employers, the existing New Parent Leave Act (“NPLA”) that became law in 2018 and provided CFRA-like bonding leave rights to smaller employers with 20-49 employees under Government Code section 12945.6 is being repealed as it is no longer needed.
While the federal FMLA remains unchanged and still does not apply to smaller public agencies with less than 50 employees, CFRA leave will now apply to all employees of such agencies effective January 1, 2021.
Expanded Uses of CFRA Leave
The other major impact of SB 1383 that is applicable to all employers – including those that have already been covered under CFRA – is the expansion of the types of leave that can be used under CFRA.
Under SB 1383, CFRA leave to care for a family member with a serious health condition has been expanded to include more family members of the qualified employee. Covered family members now include grandparent, grandchild, and sibling – in addition to the existing parent, child, spouse, or registered domestic partner. This brings CFRA in line with both California’s Paid Sick Leave Law (Labor Code sections 245, et. seq. – effective January 1, 2015) and the revisions to California’s Family Sick Leave law (Labor Code section 233 – effective January 1, 2016), which already includes these family members. However, this change also expands CFRA’s deviation from the FMLA, which does not cover leave to care for a grandparent, grandchild, sibling, or registered domestic partner.
In an interesting twist, SB 1383 also adds a definition of “parent-in-law” to CFRA, but does not reference the term anywhere else in the statute and therefore does not actually provide an employee a new right to take CFRA leave to care for the serious health condition of a parent-in-law. It is unclear at this time if future legislation may expand CFRA leave to also cover an employee taking leave to care for a parent-in-law with a serious health condition.
In addition, SB 1383 eliminates the previous restrictions under CFRA that precluded an employee from taking leave to care for their adult child over 18 years of age with a serious health condition unless that child was incapable of self-care because of a physical or mental disability. This restriction had mirrored the FMLA’s definition of “child,” but now will deviate from that FMLA standard and allow a qualified employee to take CFRA leave to care for an adult child who has a serious health condition.
In a move that now brings CFRA more in line with FMLA, SB 1383 also is adding “qualifying exigency” leave related to the covered active duty or call to covered active duty for an employee’s spouse, registered domestic partner, child, or parent in the United States Armed Forces. This generally mirrors the FMLA’s “qualifying exigency” family military leave that was added in 2008, and only slightly expands it beyond the FMLA to also include an employee’s registered domestic partner who is in the United States Armed Forces.
With SB 1383’s new additions to CFRA leave use, a qualified employee can now take CFRA leave for one of the following reasons (with the new additions in bold text):
- Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee;
- Leave to care for a child (including an adult child over 18 years of age), parent, grandparent, grandchild, sibling, spouse, or registered domestic partner who has a serious health condition;
- Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions; or
- Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child, or parent in the United States Armed Forces.
The end result here is that CFRA qualified employees will now have the ability to use CFRA leave for more reasons, including some that will not run concurrently with FMLA.
Other Significant Changes to CFRA
Finally, SB 1383 also makes two additional significant changes to the terms and conditions of CFRA leave that will also deviate from the FMLA:
- Eliminates the existing restriction in CFRA that allows an employer who employs both parents to limit their total amount of CFRA leave for both individuals to a total of 12 weeks for bonding with a newborn child, adopted child or foster care placement. The FMLA has a similar provision allowing such a limitation of a total of 12-weeks for bonding leave where both spouses are employed by the same employer. As a result of this change, where both parents are employed by the same employer and take CFRA bonding leave, they are now both entitled to a total of 12 weeks individually for such leave.
- Eliminates the “key employee” exception to an employee’s right to reinstatement. Currently under CFRA (which mirrors the FMLA), there is a very limited “key employee” exemption that allows an employer the ability to deny reinstatement to an employee who takes CFRA leave where the employee is among the highest paid 10% of the employer’s employees, the denial is necessary to prevent substantial and grievous economic injury to the operations of the employer, and where the employer notifies the employee of its intent to deny reinstatement. SB 1383 now eliminates this limited “key employee” exemption and requires an employer to provide a right to reinstatement to all employees. Following this change, the only other permissible defenses for an employer to deny a right to reinstatement is where the employee’s employment would have otherwise ceased or been modified independent of the CFRA leave (e.g., layoff, reduction in hours or disciplinary action unrelated to CFRA leave), or where the employee fraudulently took CFRA leave when they did not otherwise qualify for the leave. The burden is on the employer to establish both such defenses.
Impacts of SB 1383's Changes to CFRA on its Interaction With FMLA
Because SB 1383 makes significant changes to CFRA, a number of these changes also create a greater potential for an employee who is covered under both FMLA and CFRA to have their leaves not run concurrently, and therefore be entitled to a greater amount of protected leave.
With SB 1383’s changes, an employee’s CFRA leave does not run concurrently with FMLA under the following circumstances (with the expanded reasons in bold text):
- Leave due to pregnancy related conditions – which is considered a “serious health condition” under FMLA – is generally not considered a “serious health condition” under CFRA unless the employee has already exhausted their separate Pregnancy Disability Leave (“PDL”) entitlement under California Government Code section 12945;
- Leave to care for a serious health condition of a registered domestic partner, adult child who is not incapable of self-care, grandparent, grandchild, or sibling;
- Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s registered domestic partner in the United States Armed Forces; and
- Leave to care for an employee’s parent, child, spouse or “next of kin” who is a covered servicemember with a serious injury or illness for up to 26 weeks under FMLA (although, CFRA leave may run up to 12 weeks to the extent such leave also qualifies as leave to care for a parent, child or spouse with a serious health condition).
The impact of these expanded leave areas where CFRA leave does not run concurrently with FMLA is that a qualified employee may be therefore able to receive up to 12 weeks of CFRA leave and a separate 12 weeks of FMLA leave – for a total of 24 weeks of protected leave – in a 12-month period. For example, if a qualified employee takes 12 weeks of CFRA leave to care for a grandchild with a serious health condition (something that is not covered under FMLA), that employee would then still have 12 weeks of FMLA leave available in the relevant 12-month period. As a result, SB 1383 creates more scenarios where an employee can be out on a protected unpaid leave of absence with continued health insurance benefits and a guaranteed right to reinstatement for up to 24 weeks in a 12-month period.
Employer Preparations for SB 1383
Because SB 1383 is not effective until January 1, 2021, special district employers do have some time to prepare for its changes. Here are some suggested preparations that employers should make:
- For smaller special districts with less than 50 employees who have not been previously covered under CFRA, it is important to modify existing policies and procedures to provide for CFRA leaves of absence. CFRA is a very complex law and there are a number of specific issues such as application of accrued paid leaves, concurrent use of SDI/PFL benefits, medical certifications, and specific employee notice requirements that must be properly implemented. Supervisors and Human Resources staff should be trained on the application of CFRA leaves and applicable forms and procedures should be implemented so the agency is prepared to provide CFRA leaves to qualified employees upon the implementation of this new law.
- For larger special districts with 50 or more employees who have already been covered under CFRA (and FMLA), revisions should be made to existing FMLA/CFRA leave policies to incorporate these revisions to CFRA. In addition, employers should examine how they track FMLA and CFRA leaves to ensure they properly track when such leaves run concurrently or separately, as referenced above. Supervisors and Human Resources staff should also be trained on the changes to CFRA and the new qualifying uses of the leave.
It is also important to note that the existing CFRA regulations promulgated by the Department of Fair Employment and Housing (“DFEH”) (2 C.C.R. §§ 11087-11097) are drafted to the existing CFRA law and will have sections that are inconsistent with the changes made under SB 1383. Until the DFEH’s Fair Employment and Housing Council can propose and implement revisions to these regulations in accordance with the changes made by SB 1383, special district employers should be cautious in their reliance on such regulations and seek legal counsel to ensure compliance with the law.
This article was written Gage C. Dungy, Partner, and Lars T. Reed, Associate, Liebert Cassidy Whitmore, as part of CSDA’s New Laws Series, where experts explain recently enacted laws and how they will impact special districts moving forward. This article is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues, and attorneys should perform an independent evaluation of the issues raised in these materials.
Stay tuned to the New Laws Series in CSDA eNews for more in-depth analyses on new laws affecting special districts.
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