2127 - Families First Coronavirus Response Act (Historical View)

Status: Active

Change Notes

Updated to include information on Assembly Bill (AB) 1867 Supplemental Paid Sick Leave (SPSL).

Category

Leave

Audience List

• Employee Relations Officers
• Personnel Officers
• Personnel Transactions Supervisors

Synopsis

This policy

• Provides information on the expansion of Family Medical Leave Act (FMLA) and Sick Leave benefits due to the Families First Coronavirus Response Act (FFCRA).
• Provides information on Assembly Bill (AB) 1867 Supplemental Paid Sick Leave (SPSL).

Introduction

On March 18, 2020, the federal government enacted the Families First Coronavirus Response Act (FFCRA), which enacted both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

On September 9, 2020 AB 1867 was chaptered and became effective September 19, 2020. AB 1867 provides supplemental paid sick leave (SPSL) to employees designated as health care workers or emergency responders in departments who have exempted those employees from the FFCRA.

Statement

FAMILIES FIRST CORONAVIRUS ACT

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act (EPSLA) is effective April 1, 2020. Payments for EPSLA are processed by the department.  Under the EPSLA, employees who are unable to work or telework are entitled to two-weeks of emergency paid sick leave for sick leave related to COVID-19. Specifically, employees can use the paid sick leave if they are:

1. Subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2. Advised by a health care provider to self-quarantine related to COVID-19;

3. Experiencing COVID-19 symptoms and are seeking a medical diagnosis;

4. Caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

5. Caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or

6. Experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

The employee’s time base determines the number of paid sick leave hours the employee is entitled to receive.

• Full-time employees receive up to 80 hours of paid sick leave at the employee’s regular rate of pay.

• Part-time employees with a set time base receive a prorated amount based on their time base.

• Intermittent employees’ departments must:

  • Take the past six-months of work and calculate the average number of hours to determine the average daily hour entitlement; if the employee has not worked six months, then;

  • The number of hours the employer and employee agreed they would work each week upon hire.

Paid sick time for this purpose will be documented as Administrative Time Off (ATO) on the employee’s timesheet. ATO over 30 calendar days for these purposes does not require approval from the Department of Human Resources, Personnel Services Branch.

Any ATO provided to employees due to COVID-19 prior to April 1, 2020, does not count toward the employee’s emergency paid sick leave entitlement.

Employers may not discharge, discipline, or otherwise discriminate against any employee based upon the employee’s use of emergency paid sick leave.

Emergency Family and Medical Leave Expansion Act

Effective April 1, 2020, the federal government enacted the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Family and Medical Leave Expansion Act (E-FMLA).

E-FMLA requires certain employers to provide employees who have worked for the employer for 30-days with up to 12-workweeks of paid FMLA leave if they are unable to work or telework for specified reasons related to COVID-19. Specifically, eligible employees can take up to 12-workweeks of leave to provide care for their child whose school or daycare is closed because of COVID-19. Employees do not have to have worked for the employer for 12-months or have worked 1,250 hours in the 12-months preceding the leave to be eligible for E-FMLA. Payments for E-FMLA are processed by the department.

The first two weeks of E-FMLA are unpaid, although employees can elect to use their two weeks of paid sick leave discussed above. For weeks 3 to 12 of E-FMLA, employees will be paid two-thirds of their salary, up to $200/per day up to a total of   $10,000. Employees can elect to use leave credits to supplement their E-FMLA. The maximum daily entitlement and overall total are the same regardless of the employee’s time base.

E-FMLA utilizes the same 12-week entitlement as FMLA. If an employee has used any of their 12-week entitlement under FMLA, the entitlement under E-FMLA will be reduced by the amount already used.

If leave under this program is foreseeable, an employee shall provide their employer with such notice of leave as is practicable.

Employers may not discharge, discipline, or otherwise discriminate against any employee based upon the employee’s use of E-FMLA leave.

Supplementation

Employees receiving pay at two-thirds may elect to use applicable available leave credits to supplement up to full pay.

Required Documentation for E-FMLA

In order to take E-FMLA, employees must provide documents to support the need to care for a child whose school or place of care is closed due to COVID-19 related reasons. This may be a notice of closure or unavailability from the child’s school, place of care or child care provider. The notice may include a notice that may have been posted on a government, school or day care website, published in a newspaper or email to the parent from an employee or official of the school, place of care, or child care provider.

Absent the distinctions discussed above, the FMLA and California Family Rights Act policies, which can be found in HR Manual section 2107, apply to E-FMLA.

Notice Requirements

Effective April 1, 2020, departments must post the notices required by the Department of Labor. The postings can be found at: https://www.dol.gov/agencies/whd/pandemic.

Departments should post the notices at the worksite, distribute them electronically to all staff, as well as post them on the department’s website or intranet site.

Exemptions

The work of our health care providers and emergency responders is critical to the operations of our state departments. For this reason, the state will exempt certain classifications from being eligible for EPSLA and E-FMLA, which is specifically permitted by federal law.  

Departments are required to submit a list of classifications that meet the definitions provided by the Department of Labor (DOL) to the Personnel Services Branch at psb@calhr.ca.gov.

Health care providers for purposes of exclusion are defined by the DOL as:

A health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity.

Emergency responders for purposes of exclusion are defined by DOL as:

An emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Please see the list of exempt classification in the Resources section below.

Employees exempt from this policy may still be eligible for ATO or other leave pursuant to policy and guidance previously issued. Employees should consult their supervisors and Human Resources Office with questions about eligibility. Departments should consider any requests for ATO or other leave on a case-by-case basis.

Expiration

The Families First Coronavirus Response Act expires on December 31, 2020.

AB 1867 SUPPLEMENTAL PAID SICK LEAVE

The SPSL is effective September 19, 2020, applies to employees designated as health care workers or emergency responders, and is in addition to the employee’s other leave balances. SPSL will be documented as ATO on the timesheet. Health care providers or emergency responders otherwise excluded from the FFCRA may be eligible to take up to two weeks of COVID SPSL if they are unable to work due to any of the following reasons:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2. The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

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

The employee’s time base determines the number of SPSL hours the employee is entitled to receive.

• Full-time employees receive up to 80 hours of SPSL at the employee’s regular rate of pay.

• Part-time employees with a set time base receive a prorated amount based on their time base.

• Intermittent employees receive 14 times the average number of hours worked each day during the preceding six months, up to 80 hours. The calculations are as follows:

  • To calculate the average number of hours worked by an intermittent employee with a variable schedule over the past six months, the figure is determined based on the total number of days in the 6-month period, not just the number of days worked.

  • If the intermittent employee has worked less than six months determine the average for the time period the employee has worked for the state.

  • Retired annuitants are not eligible to receive leave under the SPSL program but are eligible under the FFCRA if the classification they are in is not exempt.

• An active firefighter who was scheduled to work more than 80 hours in the two weeks preceding the date the SPSL is taken, is entitled to an amount of SPSL equal to the total number of hours that the covered worker was scheduled to work in the two preceding weeks. For example, if a firefighter worked 100 hours the preceding two weeks, they are eligible for 100 hours of SPSL at their regular rate of pay, and not limited to 80 hours.

The leave shall be available for immediate use by the eligible employee, upon the oral or written request of the employee to the department. Departments cannot require an eligible employee to use other leave before the use of SPSL, including PLP 2020.

Any ATO time provided to an employee excluded from FFCRA between March 4, 2020 and the effective date of SPSL for the reasons listed above counts towards fulfilling the SPSL 80-hour obligation.

Employers may not discharge, discipline, or otherwise discriminate against any employee based upon the employee’s use of emergency paid sick leave.

Documentation for SPSL

The normal department process for sick leave substantiation can be applied to SPSL. However, the leave should be granted immediately and the employee should be allowed time to provide the needed substantiation.

Notice Requirements

Effective September 19, 2020, departments must post the notices required by the California Labor Commissioner. The postings can be found at: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf.

Departments must post the notices at the worksite, distribute them electronically to all staff, as well as post them on the department’s website or intranet site.

Expiration

The SPSL expires on December 31, 2020, or upon the expiration of any federal extension of the EPSLA, whichever is later.

Application

Payments

Payments under this program are not subject to the PLP 2020 reduction, including supplementation for EFMLA. Both the Federal Department of Labor and California Labor Code section 248.1 provide a daily and overall total dollar maximum.  The State provides a better benefit than the law for EPSLA and SPSL and allows the employee to receive their full pay for both leaves. EFMLA is capped at two-thirds the employees’ daily rate to a maximum up to $200/per day up to a total of $10,000.

Tracking

Departments must develop a mechanism to manually track all pay provided to employees under these programs. The tracking mechanism must include the employee’s name, leave type used, dates the leave is used, hours of leave used, and total amount paid to the employee under each program.

Timesheet Documentation

Employees must clearly document on their timesheet in the comments section or location as defined by the department the leave which they are using, either EPSLA, EFMLA or SPSL. For example: when using any portion of the two weeks of EPSLA, it should be stated in the comments section along with the dates, in addition to the ATO time documented on the applicable days.

Intermittent Leave Use

If approved by, employees may use FFCRA leave intermittently if they are unable to work or telework due to reason five, to care for an employee’s child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons. Additionally, if approved, employees teleworking away from the normal worksite who are unable to work or telework due to any of the qualifying reasons may use EPSLA and SPSL intermittently. For example, SPSL may be used in increments if the employee is teleworking due to exposure and subsequently becomes sick with COVID and can no longer telework.

Payroll Processing

For payroll processing instructions a State Controller’s Office Payroll Letter will be forthcoming.

Authorities

• H.R.6201 - Families First Coronavirus Response Act
• Assembly Bill No. 1867, chapter 45
• Labor Code section 248.1

Resources

FAQs

• Families First Coronavirus Act FAQs: Families First Coronavirus Act FAQs

Web Pages

• Classifications Excluded from FFCRA: Classifications Excluded from FFCRA
• Department of Labor Families First Coronavirus Response Act: COVID-19 and the American Workplace

Authorized By

Melissa Russell
Chief, Personnel Management Division

Contact Person

Personnel Services Branch
Personnel Program Consultant, , Personnel Services Branch
Phone: 916-323-3343
Fax: 916-327-1886
Email: psb@calhr.ca.gov

Superseded Policies