Employment law in the best of times presents an ever-changing landscape, but with the COVID-19 pandemic and vaccine rollout, it can be especially challenging for workers and employers. As a general, regularly-updated informational resource for California workers and employers, we recommend the website created by the California Labor & Workforce Development Agency on Coronavirus 2019 (COVID-19) Resources for Employers and Workers, available at https://www.labor.ca.gov/coronavirus2019/. The website has a dedicated COVID-19 Employer Portal that is designed to help California employers to find state and local COVID-19 guidance.
In addition to frequent public-health updates impacting workforce management, California employers need to be aware of several recent legislative developments designed to provide job protection and financial support for California employees. We summarize below a few of the more notable “new” laws.
Expansion of the California Family Rights Act to Small Employers of Five or More Employees
Effective January 1, 2021, California expanded its family and medical leave law, the California Family Rights Act (“CFRA”), to apply to private employers with five or more employees. Previously, CFRA only applied to employers with 50 or more employees, but due to the CFRA expansion, almost all employers are required to provide eligible employees with up to 12 weeks of job protected, unpaid leave (1) for their serious health condition; (2) to care for a spouse, parent, or dependent with a serious health condition; or (3) for leave to bond with a newborn or a child placed with the employee for adoption or foster care. (“Qualifying Reasons”). For an employee to be eligible for CFRA leave for a Qualifying Reason, the employee must have worked for the employer for one or more years and have 1,250 hours of service in the past year. See generally Cal. Dept. of Fair Employment and Housing (“DFEH”), Family Care and Medical Leave, Quick Reference Guide, https://www.dfeh.ca.gov/employment/family-care-medical-leave-guide/.
In anticipation of the question of whether an employee may take CFRA leave for COVID-19, the DFEH’s March 4, 2021 guidance states that COVID-19 may qualify as a serious health condition if COVID-19 results in inpatient care or continuing treatment or supervision by a health care provider. In addition, COVID-19 may qualify as a serious health condition if it leads to conditions such as pneumonia. See DFEH, DFEH Employment Information on COVID-19, dated Mar. 4, 2021, https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf.
All employers required to provide CFRA leave, must display the following workplace poster or email it to remote workers: https://www.dfeh.ca.gov/family-medical-pregnancy-leave/. Employers should also make sure to regularly update all required workplace posters.
California 2021 COVID-19 Supplemental Paid Sick Leave Benefits
In addition to the expansion of CFRA leave to more California employers and to address the COVID-19 pandemic and vaccination rollout, effective March 29, 2021, California employers with more than 25 employees (that is, 26 or more employees) must provide 2021 COVID-19 Supplemental Paid Sick Leave benefits to employees who are unable to work or telework (“Covered Employee”) for any of the following reasons from January 1, 2021 through September 30, 2021:
- Caring for Oneself: Covered Employee is subject to a quarantine or isolation period related to COVID-19*;
- Caring for a Family Member: Covered Employee is caring for a family member who is subject to a quarantine or isolation period related to COVID-19* or has been advised by a healthcare provided to quarantine due to COVID-19, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises; or
- Vaccine-Related: Covered Employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms.
- Note (*): The quarantine or isolation period related to COVID-19 is a period defined by an order or guidelines of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace. The California Department of Industrial Relations takes the position a Covered Employee that is subject to a general stay-at-home order does not fall within the ambit of being subject to a quarantine or isolation period related to COVID-19.
See SB 95 (adding Labor Code Sections 248.2 and 248.3); Cal. Dept. of Indust. Rel., 2021 COVID-19 Supplemental Paid Sick Leave FAQs (Labor Code Section 248.2), dated April 2021, at Q&A Nos. 4, 6 & 7, https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html (last visited May 20, 2021).
Please note that the COVID-19 Supplemental Paid Sick Leave is retroactive. This means that if a Covered Employee took leave for one of the above qualifying reasons between January 1, 2021 and March 28, 2021, the Covered Employee can request payment for the leave if the Covered Employee took the time as unpaid. Cal. Dept. of Indust. Rel., 2021 COVID-19 Supplemental Paid Sick Leave FAQs (Labor Code Section 248.2), at Q&A No. 8, above.
All employers required to provide California 2021 COVID-19 Supplemental Paid Sick Leave must display the following workplace poster or email it to remote workers: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf.
COBRA Premium Assistance for Certain Employees from April 1, 2021 to September 30, 2021
As both employers and employees know too well, health insurance (medical, vision, and dental) is expensive, and for an employee whose employment has ended, these employees are faced with losing health insurance coverage. To avoid these employees having a coverage gap as they pursue coverage elsewhere, the federal Consolidated Omnibus Budget Reconciliation Act (“COBRA”) requires an employer to offer continuation of group health coverage to covered employees, their spouses, former spouses, and dependent children when group health coverage would otherwise be lost due to certain specific events, for example, termination of an employee’s employment for any reason other than gross misconduct or reduction in the number of hours of employment. COBRA continuation coverage is often more expensive to the employee because when the employee is working for the employer, the employer often pays part of or the entire cost of the employee’s coverage. See U.S. Dep’t of Labor, General COBRA FAQs for Workers, https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/cobra-continuation-health-coverage-consumer.pdf.
Please note that while COBRA applies to private-sector employers with 20 or more employees, many states have similar COBRA laws (called mini-COBRA). For example, California’s counterpart is Cal-COBRA and applies to employers with 2 to 19 employees.
As part of the American Rescue Plan Act of 2021 (“ARP”) that President Biden signed into law on March 11, 2021, “the ARP requires an employer to pay 100% of the COBRA premium for an “Assistance Eligible Individual” for the coverage period from April 1, 2021 through September 30, 2021 (“Assistance Period”). This provision of the ARP applies to employers subject to the federal COBRA or the mini-COBRA laws. See U.S. Dep’t of Labor, FAQs Abut COBRA Premium Assistance Under the American Rescue Plan Act of 2021, Apr. 7, 2021, https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/cobra-premium-assistance-under-arp.pdf.
In brief, if an Assistance Eligible Individual elects to have COBRA coverage, the ARP requires the employer to pay the Assistance Eligible Individual’s COBRA continuation coverage premiums during the Assistance Period (“COBRA Premium Assistance”). An Assistance Eligible Individual is one whose (a) workhours have been reduced or (b) employment was involuntarily terminated.
To offset the cost to the employer of complying with the ARP’s COBRA Premium Assistance requirement, the employer is entitled to a tax credit for the amount of the COBRA Premium Assistance.
In addition to the above requirements, employers should confirm with their plan administrators that Assistance Eligible Individuals are receiving the appropriate COBRA notices required by the ARP.
We here at Scherer Smith & Kenny LLP remain available to address any questions you may have related to these or other employment- or business-related issues. For additional information, please contact Denis Kenny at dsk@sfcounsel.com, Ryan Stahl at rws@sfcounsel.com, or John Lough, Jr., at jbl@sfcounsel.com
– Written by Denis Kenny and John Lough, Jr.