COVID Supplemental Paid Sick Leave Currently Set to Expire After September 30, 2021

Early on in the COVID-19 pandemic, the federal Families First Coronavirus Response Act (FFCRA) was signed into law. The FFCRA generally required employers with less than 500 employees to provide paid time off to eligible employees for certain COVID-19 related reasons. It also allowed employers to offset the cost of providing FFCRA leave to employees through a tax credit. Although the requirement to provide FFCRA leave expired on December 31, 2020, the availability of the tax credit for voluntarily-provided FFCRA leave was extended to September 30, 2021.

In March of 2021, Governor Newsom signed Senate Bill 95 (SB 95) into law. SB 95 created a new California Labor Code section requiring employers with more than 25 employees to provide up to 80 hours of supplemental paid sick leave (SPSL) to employees for certain COVID-19 related reasons. SB 95 also required covered employers to provide written notice to employees of the amount of SPSL they had available each pay period. SB 95 is also currently scheduled to expire on September 30, 2021.

Barring new legislative or executive actions or additional retroactive requirements, starting September 30, 2021, covered California employers are no longer required to provide employees with SPSL under SB 95. (Employers are reminded that the California Cal/OSHA COVID-19 Prevention Emergency Temporary Standards are still in effect and include certain paid leave provisions, as referenced below.) In addition, the availability of the federal tax credit to reimburse eligible employers for voluntarily-provided FFCRA leave is also coming to an end on September 30, 2021. Accordingly, going forward, employers are no longer required under state or federal law to provide supplemental paid sick leave to employees for COVID-19 related reasons, and any employer who voluntarily elects to do so will not be entitled to a federal tax credit to offset the costs.

Employers should keep in mind that they may be obligated to provide paid leave and other benefits under applicable state and federal laws which remain in effect. In particular, California’s Cal/OSHA Emergency Temporary Standards (ETS) remain in effect, including requirements that employers maintain compliant COVID-19 Prevention Programs, provide exclusion pay, offer COVID-19 testing at no cost during paid time to certain employees exposed to COVID-19, and maintain accurate records of COVID-19 cases (while also ensuring the confidentiality of medical records). Additionally, the Biden administration recently announced that OSHA will be issuing new federal Emergency Temporary Standards in the near future, which are expected to include a requirement that employers provide paid time off for employees to get vaccinated and/or to recover from post-vaccine symptoms, and may include additional provisions regarding employee testing in lieu of vaccination.

To summarize, barring new legislative or executive actions or additional retroactive requirements:

• The California SB 95 requirement to provide supplemental paid sick leave for COVID-19 related reasons expires on September 30, 2021.
  • Note: According to the California Department of Industrial Relations, supplemental paid sick leave should continue to be paid, up to the applicable maximum amounts, beyond September 30, 2021 to employees whose SPSL leave began prior to that date and who remain on SPSL leave after that date.
• The federal tax credits that were available to reimburse certain employers for the costs of voluntarily-provided FFCRA leave also expire on September 30, 2021.
• Starting in the first full pay period following September 30, 2021, an employee’s available balance of COVID-19 supplemental paid sick leave no longer needs to be included on wage statements (or in a separate writing).
• The previously required poster providing information on California COVID-19 supplemental paid sick leave may be removed from the workplace.
• Exclusion pay, return-to-work criteria, paid testing, and other requirements under the Cal/OSHA Emergency Temporary Standards do continue to apply. CLICK HERE for the Association’s prior guidance on the Cal/OSHA ETS.

Federal OSHA is expected to issue new Emergency Temporary Standards to encourage workforce vaccination, including an anticipated requirement that employers provide paid time off for employees to get vaccinated and/or to recover from post-vaccine symptoms. It is currently unclear how the testing and other provisions of the ETS will be drafted. CLICK HERE for the Association’s prior guidance on the anticipated federal ETS.

For questions, please contact Rafael Gonzalez or Brian Daly at 805.722.1202 or email rgonzalez@mullenlaw.com or bdaly@mullenlaw.com or call the Grower-Shipper office at 805.343.2215.

Source: Grower Shipper Association