California Resources — Unemployment and Disability Insurance, Paid Family Leave, Paid Sick Leave
From Navigating COVID-19
|< Previous||Table of Contents||Next >|
- 1 UPDATED: California Enacts New Supplemental Sick Leave Mandate Effective Immediately
- 1.1 Previous Supplemental Sick Leave Laws Applicable to California Employers
- 1.2 Covered Employers
- 1.3 Eligible Employees
- 1.4 Qualifying for Leave
- 1.5 Employees Are Eligible for Up to 80 Hours of Leave
- 1.6 Interaction with Other Leave Laws
- 1.7 Retroactive Pay May Be Required
- 1.8 Notice Requirements
- 1.9 Pay Stub Requirements
- 1.10 In-Home Health-Care Providers and Firefighters
- 1.11 Compliance Recommendations
- 1.12 Frequently Asked Questions
- 2 Unemployment Insurance Benefits
- 3 Employees Who Work Reduced Hours May Collect Partial Unemployment Benefits
- 4 Laid-Off and Furloughed Employees May Collect Unemployment Benefits
- 5 California's Work Sharing Program
- 6 Disability Benefits
- 7 Paid Family Leave
- 8 Paid Sick Leave
- 9 See Also
The state of California encourages employees to avail themselves of all programs available and applicable to their individual circumstances and needs. The programs in this section are administered by the Employment Development Department (EDD). Its duties including determining an individual’s eligibility for benefits.
UPDATED: California Enacts New Supplemental Sick Leave Mandate Effective Immediately
On March 19, 2021, Gov. Gavin Newsom signed Senate Bill 95, which extends and expands a requirement for employers to provide supplemental paid sick to employees affected by COVID-19. The law places new paid leave requirements on most California employers, and it requires their immediate attention.
Gov. Newsom explained the reason for the new law: “Paid sick leave gives workers the time they need to care for themselves and loved ones while keeping their co-workers, families and community safe.”
The law takes effect immediately, but includes a 10-day grace period for employers to start providing sick leave. Employers must begin providing the leave on March 29, 2021.
The new law applies retroactively to Jan. 1, 2021, and will remain in effect until Sept. 30, 2021. It's enforced by the California Labor Commissioner's Office. Read the full bill here.
Previous Supplemental Sick Leave Laws Applicable to California Employers
Last year, Assembly Bill 1867 was enacted in California to provide supplemental paid sick leave to employees working for businesses with 500 or more workers. It was intended to fill the gap for employees not covered by the federal Families First Coronavirus Response Act (FFCRA), which applied to all employers with a workforce up to 500 employees.
AB 1867 and the FFCRA expired on Dec. 31, 2020. Note: SB 95 does not extend either piece of legislation, but creates an entirely new mandate with a required “bank” of available paid sick leave. So even if California employers paid out supplemental paid sick leave in 2020, they must create new leave banks for eligible employees in 2021.
The new law applies to all California employers with 25 or more employees.
Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave.
There is no length of service requirement for the leave entitlement. Employees may request the leave orally or in writing.
Qualifying for Leave
The first two of these qualifying reasons for leave were part of the original California and FFCRA paid sick leave laws. SB 95 adds five more.
- The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guideline of the state Department of Public Health, the federal Centers for Disease Control and Prevention (CDC) or a local health officer with jurisdiction over the workplace.
- The employee has been advised by a health-care provider to self-quarantine due to concerns related to COVID-19.
- The employee is attending an appointment to receive a vaccine for protection against COVID-19.
- The employee is experiencing symptoms related to a COVID-19 vaccine that prevents him or her from being able to work or telework.
- The employee is experiencing symptoms related to COVID-19 and is seeking medical diagnosis.
- The employee is caring for a family member who is subject to a quarantine for isolation order or has been advised to self-quarantine.
- The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
Employees Are Eligible for Up to 80 Hours of Leave
Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave.
Full time is defined as an employee who is classified as full-time by the employer or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the date on which leave is taken.
If an employee is not classified as full time, his or her schedule and length of employment will determine the amount of leave entitlement as follows:
- An employee with a regular schedule is entitled to the total number of hours she or he normally is scheduled to work for the employer over two weeks.
- The employee with a variable schedule is entitled to 14 times the average number of hours she or he worked each day for the employer in the six months preceding the leave.
- An employee with a variable schedule who has worked for the employer for 14 days or fewer is entitled to the total number of hours she or he has worked for the employer.
The rate of pay for the leave for nonexempt employees is calculated at the highest of these:
- the employee’s regular rate of pay for the work week in which he or she uses the leave;
- a formula dividing the covered employee’s total wages not including overtime by his or her total hours worked in the full pay period of the previous 90 days of employment;
- the state minimum wage;
- the local minimum wage to which the employee is entitled.
For exempt employees, the leave is paid at the rate the employer calculates wages for other forms of paid leave time.
Currently, the amount paid for supplemental paid sick leave is capped at $511 per day and an aggregate $5,110.
Employees who reach the maximum supplemental leave payout may use other available paid leave including vacation, paid time off (PTO) or other sick leave to supplement their salary so that they earn up to 100% of their regular salary.
Interaction with Other Leave Laws
An employer may not require an employee to use other paid or unpaid time off before he or she uses SB 95 leave.
California Sick Leave –– The Healthy Workplace Healthy Family Act
SB 95 paid sick leave is in addition to any paid sick leave available pursuant to California’s sick leave law, known as the Healthy Workplace Healthy Family Act of 2014, codified in Labor Code section 246.
Cal/OSHA Emergency Temporary Standards Required Paid Leave
Late last year, Cal/OSHA enacted Emergency Temporary Standards (ETS) that required employers, among other things, to prepare and implement a COVID-19 prevention program, and required them to provide “continued earnings” to employees who were excluded from the workplace because of work-related exposures or positive COVID-19 cases. SB 95 clarifies that employers may require an employee to exhaust supplemental paid sick leave under SB 95 before becoming eligible for “continue earnings” under the ETS. The Cal/OSHA ETS requirements are found here.
If an employee took leave for an SB 95 qualifying reason after Jan. 1, 2021 pursuant to any federal, state or local law, or employer-provided COVID-19 leave, it may be counted as leave provided under SB 95. The employer may be required to provide retroactive payment to the employee for the leave taken if it was unpaid or not paid at the level required by SB 95.
Retroactive Pay May Be Required
SB 95 supplemental sick leave is retroactive to Jan. 1, 2021. The new law establishes these provisions for retroactive payment:
- The employee took supplemental paid sick leave specific to COVID-19 on or after Jan. 1, 2021 (for example, a city-mandated leave for quarantine).
- The leave was for one of the reasons covered by SB 95 as defined above.
- The leave was either unpaid or paid at a lower rate than mandated by SB 95.
If all of these conditions are met and the employee requests retroactive pay either orally or in writing, the employer must comply.
Once retroactive payments are made, employers may take credit for the leave hours previously provided.
Retroactive payments must be paid on or before the next full payroll period after the request of the covered employee.
Employers might have to replenish PTO, vacation or other leave banks of employees who used such leave while on an SB 95 leave prior to its enactment.
Employers must provide employees with notice of the new law. The Labor Commissioner’s Office will release a model notice by the end of March. Employers may provide this notice electronically.
Pay Stub Requirements
The COVID-19 supplemental paid sick leave balances must be itemized on wage statements.
- The COVID-19 supplemental paid sick leave must be denoted separately from regular paid sick days
- For employees with part-time and variable schedules (making their leave entitlements variable), the new law specifies that the employer satisfy the wage statement obligation by doing an initial calculation of leave available and indicating “variable” next to that calculation on the initial and subsequent wage statements. The calculation must be updated when leave is taken
In-Home Health-Care Providers and Firefighters
A separate section under SB 95 outlines similar leave requirements for providers of in-home health care and supportive services firefighters.
Employers are encouraged to take these steps to ensure compliance with the new law:
- Educate and train human resources and payroll employees about the new supplemental paid sick leave requirements. Employers might want to include in the training the law’s impact on Cal/OSHA’s emergency temporary standard (ETS) exclusion pay, as well as the requirement that the employer replenish vacation, sick leave and PTO banks for leave taken since Jan. 1, 2021 for a covered reason.
- Direct payroll employees to create or reinstate a separate COVID-19 supplemental paid sick leave designation on wage statements.
- Watch for and post and/or electronically distribute the COVID-19 supplemental sick leave model notice the Labor commissioner issues.
Frequently Asked Questions
- Does an employer get credit for voluntarily providing FFCRA leave to employees after Dec. 31, 2020, even though it wasn’t legally required? Probably. The bill allows employers to get credit for “paid leave provided by the employer pursuant to any federal or local law in effect or that became effective on or after January 1, 2021.” The FFCRA expired Dec. 31, 2020, but employers were allowed to voluntarily provide the leave and receive tax credit through Sept. 30, 2021.
- Is an employer required to pay retroactive leave pay only if an employee requests? It appears that the employee must request the retroactive payment if the qualifying leave taken prior to the enactment of SB 95 wasn’t paid or wasn’t paid at the level it mandates. The language in the bill suggests that employees are able to decide if they want the retroactive payment or if they want to “bank” the hours for use at a later date.
- If, after Jan. 1, 2021, an employee used PTO to cover otherwise unpaid leave taken for one of the qualifying reasons for leave under SB 95, must it reinstate the PTO and pay the employee for the time off? Yes, if the employee requests retroactive pay. See above, Retroactive Pay May Be Required.
- If, prior to the enactment of SB 95, an employee took 80 hours of sick leave for an SB 95 qualifying reason and was paid his full salary for the entire leave –– does the employer have any further payment obligation to him? No, as long as the pay wasn’t from a specific leave bank unrelated to COVID-19, such as California sick leave, vacation or PTO
Unemployment Insurance Benefits
Employees should apply for unemployment insurance (UI) benefits if they are unemployed because:
- Their hours are reduced due to quarantine.
- They have been separated from their employer during quarantine.
- They are subject to a quarantine required by a medical professional or a state or local health officer.
Employees might be eligible for benefits if they have enough earnings over the last 12 to 18 months and meet other eligibility criteria. The governor’s executive order waives the one-week unpaid waiting period during the coronavirus crisis, so employees may collect UI benefits for the first week they are out of work.
An employee might be eligible for unemployment benefits if she or he chooses to stay home from work due to underlying health conditions and concerns about exposure to the virus.
An employee might be eligible for unemployment benefits if his or her child’s school closes, and the employee has to miss work to care for that child. The EDD determines eligibility on a case-by-case basis via a phone interview.
If an employer reduces workers' hours or shuts down operations due to COVID-19, employees still should file a UI claim. The benefit partly replaces wages for workers who lose their jobs or some of their hours through no fault of their own. Such workers who temporarily are unemployed due to COVID-19 and expect to return to work for their employer within a few weeks are not required to actively seek work each week. But they must remain able and available to work during their unemployment for each week of benefits claimed, and meet all their eligibility criteria.
Eligible employees receive benefits that range from $40 to $450 per week. Depending on an employee’s maximum award for the unemployment claim and the weekly benefit paid, he or she may receive benefits for 13 to 26 weeks, if he or she is paid at the full weekly benefit amount for each of those weeks. Payments could last longer if the employee performs some work for pay or if he or she receives other deductible income during the course of the claim, and, as a result, receives reduced unemployment benefits during those weeks. The EDD uses an employment insurance calculator to help estimate a worker’s potential weekly benefit amount.
Under the Coronavirus Aid, Relief, and Economic Security Act (CARES) discussed in previous sections, some individuals may qualify for an extra $600 weekly payment. Eligible employees would receive UI benefits for as long as 39 weeks. Employees should apply for benefits under the three unemployment programs in the CARES Act.
UI benefits interact with state disability benefits, and an applicant may transition from one to the other. An employee may start collecting disability benefits, then transition to an unemployment claim if his or her workplace continues to be impacted with a slowdown, or closes. An employee who begins collecting unemployment benefits because of a layoff or reduction in hours may switch to a disability claim if he or she becomes sick.
The same relationship exists between UI benefits and family leave. An employee could start collecting unemployment benefits because of layoff or reduction in hours, then switch to a paid family leave benefit if she or he must care for a family member who is sick. The state intends to be as flexible as possible to ensure that workers are provided the maximum benefit to which they are entitled.
Employees Who Work Reduced Hours May Collect Partial Unemployment Benefits
Under certain conditions, as noted above, an individual may be considered “unemployed” in any work week of less than full-time employment –– that is, if his or her weekly payable wages were reduced by $25 or 25% (whichever is greater), and did not equal or exceed the weekly benefit amount. For example, if an employee earned $100 in a week, the EDD would not count $25 as wages and deduct only $75 from the weekly benefit amount. Someone whose weekly benefit was $450 would be paid $375.
Once an individual is deemed to be “unemployed” and qualifies for partial UI benefits, the EDD calculates the weekly and reduced weekly benefit amounts.
Laid-Off and Furloughed Employees May Collect Unemployment Benefits
Individuals who have been laid off or furloughed without pay generally are eligible for unemployment benefits. Such workers must be considered ”unemployed” as defined by the California Unemployment Insurance Code. An individual is ”unemployed” in any work week that he or she (1) performs no services for which wages are payable; or (2) has less than full-time work. The latter case is calculated using the metrics in the previous subsection.
For a summary of how full or partial UI benefits are calculated, link here: https://www.edd.ca.gov/unemployment/ui-calculator.htm.
Practice Tip: The Pandemic Unemployment Assistance (PUA) program, a CARES Act initiative, provides unemployment insurance coverage to independent contractors, gig workers and the self-employed. Companies that hire independent contractors should review the propriety of those classifications carefully. An independent contractor's application for unemployment insurance could trigger an audit by the U.S. Department of Labor (DOL), the Department of Labor Standards Enforcement or the state's Employment Development Department to confirm the company's compliance with Assembly Bill 5, the new California independent contractor law. See the in-depth discussion of AB 5 in "Sullivan on Comp" Section 4.58 Independent Contractor. Contact us to discuss your specific situation.
California's Work Sharing Program
If COVID-19 has impacted an employer’s business, it might be able to prevent layoffs by participating in the Unemployment Insurance Work Sharing Program, which helps employers to retain their workers. Employers reduce the hours across the board of current employees instead of imposing layoffs or furloughs. The employees receive prorated unemployment benefits. So the employer is spared costs of recruiting, hiring and training new workers, and workers get to keep their jobs while receiving financial support for their reduced hours. The arrangement leaves employers and their workers better prepared when business improves.
Work sharing offers employees who otherwise might not have been eligible for partial unemployment benefits to receive some benefits, plus their weekly wages. Leased, intermittent, seasonal or temporary service employees may not participate in a work sharing program. Workers who do participate receive a percentage of their weekly UI benefit reflecting the reduction in their hours and wages for that week.
For information about California’s work sharing program, link to: https://www.edd.ca.gov/unemployment/Work_Sharing_Program.htm
If an individual is unable to work due to having or being exposed to COVID-19, and he or she has the necessary supporting medical documentation, he or she should file a disability insurance (DI) claim. DI provides short-term payments to eligible workers who have a full or partial loss of wages due to a nonwork-related illness, injury or pregnancy. Most California workers have DI insurance through deductions from their paychecks.
Gov. Newsom’s executive order waives the one-week unpaid waiting period for DI benefits, so a qualified individual is paid for the first week he or she is out of work. To be eligible for disability insurance benefits, the worker must submit certain medical documentation. A medical certification signed by a treating physician or a practitioner meets this requirement. It includes: a diagnosis and ICD-10 code, or if no diagnosis has been made, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information.
Disability insurance benefits are approximately 60% to 70% of wages (depending on income), and range from $50 to $1,300 a week. The EDD's disability insurance calculator estimates an individual’s potential benefit amount. Benefits are paid through the date the individual’s doctor certifies or when the worker exhausts available benefits, whichever occurs first within a 52-week period.
Individuals qualify for disability benefits if they are under quarantine certified by a medical professional or a state or local health officer. If an employee is found not to be eligible for DI, he or she should apply for unemployment insurance.
Paid Family Leave
If a family member is sick and an employee has to miss work to care for that person, she or he may be eligible for paid family leave benefits. The state makes clear that if an employee is unable to work because she or he is caring for an ill or quarantined family member with COVID-19, this leave might apply. It provides benefits for as long as six weeks (extended to eight weeks starting July 1, 2020) to eligible workers who have a full or partial loss of wages because they need time off to care for a seriously ill family member or to bond with a new child. For paid family leave coverage, "family member" is defined as a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse or registered domestic partner.
To be eligible for these benefits, the worker must submit the family member's medical documentation pertaining to the illness or quarantine due to COVID-19. A medical certification for that person from a treating physician or a practitioner meets this requirement if it includes: a diagnosis and ICD-10 code, or if no diagnosis has been made, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. The requirement also is met by a written order from a state or local health officer specific to the family member's situation. Absent these documents from these sources, the worker might be eligible for unemployment insurance. Telehealth and virtual appointments are acceptable for a physical examination, but medical certification is still required.
Paid Sick Leave
Employees may use California-mandated paid sick leave to care for themselves or a family member who is sick or requires preventive care when civil authorities recommend quarantine. Under California law, most employees who work for 30 days or more within a year of starting work are eligible for paid sick leave.
The amount of sick leave an employee may accrue per year depends on his or her paid sick leave plan. California law requires 24 hours (or three days) minimum of paid sick leave per year for full-time employees. They earn a minimum of one hour of paid leave for every 30 hours worked.
An employee is entitled to begin using accrued paid sick time beginning on the 90th day of employment.
Paid sick leave may be carried over to the next year if an employee does not use his or her sick leave. Employers, however, may cap the total amount of accrued sick leave at 48 hours, or six days.
Paid sick leave is available for full-time workers, part-time workers and temporary employees. There are some restrictions for certain workers who do not fall under the California sick leave laws for regular employees, including those working under a collective bargaining agreement and in-home supportive care providers, among others.
California sick leave may be used for reasons other than illness, including:
- seeking a diagnosis
- preventive care
- treatment and safety planning related to domestic violence, sexual assault and stalking
Employers may not deny an employee's right to use sick time or retaliate against an employee for using sick leave.
When employees exhaust benefits under emergency sick leave for their own illness or are caring for an ill family member, and need additional leave, employers should let them use their accrued sick leave, per California’s sick leave mandate.
- Federal and California Worker Adjustment and Retraining Notification Acts
- State and Local Workplace Safety Orders
- Appendix — Web Links For Local Safety Orders
|< Emergency Economic Injury Disaster Loans & Emergency Economic Injury Grants||Table of Contents||California Enacts New Supplemental Sick Leave Mandate Effective March 19, 2021 >|