If You Own a Business in California and Your Employee Has COVID-19, Do You Have to Continue to Pay?

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Running a business is difficult. Running a business in the middle of a pandemic is even more complex. In addition to the everyday challenges that you have always faced as an employer, you now have the added challenge of keeping your business going while keeping your employees and those you serve safe.

When an employee gets COVID, or is exposed to someone who has COVID, and has to miss work that can be particularly disruptive to business operations. Do you have to pay an employee while they are out? What leave benefits do you have to provide to your employees?

In 2020 employers were introduced to a number of new acts and regulations to address COVID-19 and employee leave. These included the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES). Those two Acts temporarily created a federal response to leave during the pandemic. Both Acts expired in December of 2020.

While California employers no longer have to navigate those laws, you need to be aware of the state statutes and local ordinances regarding leave, both paid and unpaid, that apply to your business.

CA COVID-19 Supplemental Paid Sick Leave (“SPSL”)

he SPSL was passed to run in conjunction with the FFCRA. Like the FFCRA and CARES, the SPSL expired on December 31, 2020.

However, certain California municipalities have chosen to provide employees protections through supplemental leave ordinances, which essentially have the effect of extending the SPSL. It is important to find out if the SPSL still applies to you.

Counties such as Los Angeles County have stated that the SPSL will remain in effect “until two calendar weeks after the expiration of the COVID-19 local emergency period.”

The SPSL, and the local ordinances, requires that employers with 500 or more employees across the country provide sick leave to any employee who works outside of their home and needs leave due to COVID-19. According to the California Department of Labor, employees are eligible for paid sick leave if:

• The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19

• The worker is advised by a health-care provider to self-quarantine or self-isolate due to concerns related to COVID-19

• The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

As with any law there are exceptions. If you are an employer with less than 500 employees or you employ emergency and health care workers then the supplemental paid sick leave laws do not apply to your business.

California Paid Family Leave (PFL)

If your employees have paid into the California State Disability system they can receive up to eight weeks of partially paid leave under the PFL. You will not pay out of pocket for these payments, they come from the state of California.

Employees who are out of work because they have COVID-19 or need to care for a family member with COVID-19 will qualify to receive payments under the PFL.

California Paid Sick Leave (PSL)

If an employee has worked for you for 30 or more days then they are eligible for PSL after their 90th day of employment. PSL applies to all employers regardless of size and requires that employers provide a minimum of 3 days leave. Unused leave can be carried over up to 6 days so you may need to provide more than 3 days.

Employees will have to be paid at their regular rate or, in the case of hourly employees, the average rate for the prior 90 days.

CAL/OSHA Emergency Temporary Standards

Employees who test positive for COVID-19 while at work, or who have been exposed to COVID-19 while at work may be eligible for exclusion pay. Exclusion pay provides continued pay and benefits to eligible employees.

Family and Medical Leave (FMLA)

The Family and Medical Leave Act was passed to protect the jobs of workers who have a serious illness, need to care for a family member with a serious illness or are adopting. While you may need to provide eligible employees with time off under the FMLA, FMLA leave is unpaid.

This is an ever changing and very complicated area of the law. Laws and ordinances continue to expire, be extended and re-written frequently. An attorney can help you navigate this legal landscape by looking at your unique business and helping you to understand which laws apply to you and how they apply.