Colorado and California Cities Extend COVID-19 Leave into 2021

With the COVID-19 pandemic stretching into 2021, recently state and local lawmakers in Colorado and California extended their temporary public health emergency leave (PHEL) laws.

February 22, 2021

With the COVID-19 pandemic stretching into 2021, state and local lawmakers in Colorado and California recently extended their temporary public health emergency leave (PHEL) laws. Generally, the laws provide up to 80 hours of PHEL for full-time employees and a prorated amount for others to use for purposes related to the pandemic.

In 2020, there were roughly 15 PHEL laws enacted in Colorado, California, New York and Pennsylvania. These laws sought to extend federal leave requirements under the Families First Coronavirus Response Act (FFCRA) to employers with 500 or more employees. Many of these laws, with the exception of those passed in New York and two California localities, included a specific end date requiring further government action to extend them. In 2021, the federal law, California’s two statewide laws and Philadelphia’s laws have expired, and so far, no action has been taken to extend them. The majority of PHEL laws are still effective. Listed below are details about extensions in 2021 and any new requirements for employers.

For background information and more details, see our previous newsletters (here, here, here) and our PSL tool.

Colorado

In late December, Colorado’s Department of Labor and Employment issued guidance, on a complicated 3-1 2020 leave statute, that requires employers to provide an extra 80 hours of PHEL in 2021, in addition to the 80 hours provided in 2020, to fulfill the law’s COVID-19 emergency paid sick leave (EPSL) requirement, which expired at the end of 2020. The guidance clears up some confusion about whether the Governor’s 2020 declaration of a public health emergency and subsequent extensions would trigger the PHEL requirement, which only became effective in 2021.

In its guidance, the department also clarified the following:

  • PHEL is only available once per declared public health emergency. If the COVID-19 pandemic carries over into 2022, employees would not be eligible for an additional 80 hours of leave.
  • Employers may count unused paid sick and safe time (PSST, also effective 1/1/21) toward the PHEL requirements. For example, if employers frontload the 48 hours of PSST on January 1, 2021, they would only need to provide 32 hours of PHEL leave. If employers follow the accrual method at 1 hour per 30 hours worked, they would be required to add an 80-hour leave bank of PHEL.
  • Employers may not count the 2020 EPSL hours against the 2021 PHEL requirement.

California

Unlike Colorado, California localities did not provide an additional 80 hours in 2021 for existing employees, but instead granted additional time to use 2020 balances. New employees would be eligible for up to 80 hours. In enacting extensions, some of the localities did so retroactively so that employees would get credit for leave taken when the laws were not in effect. Others did so only prospectively.

Table 1 details the end date of the local laws and whether they were enacted prospectively or retroactively.

Table 1: Public Health Emergency Leave End Date

3/31/21 Mid-April 6/30/21 End of Public Health Emergency

Sacramento county – (Effective prospectively from 1/14/2021)

San Francisco – (Effective 61 days from Mayor signing, likely mid-April. Passed by S.F. Board of Supervisors on 2/9/11)

San Jose – (Effective retroactively to 12/31/2020)

Los Angeles county – Two calendar weeks after the expiration of the COVID-19 local emergency (effective retroactively to 1/1/21)

Sacramento city – (Extended prior to expiration)

 

San Mateo county – (Extended prior to expiration)

Oakland –End of the city’s COVID-19 emergency declaration (effective retroactively to 12/31/20)

Santa Rosa – (Effective prospectively from 2/2/21. Effective until the end of 3/31/21 or the date in which the FFCRA tax credits expire)

 

Sonoma county – (Effective prospectively from 1/26/2021)

Los Angeles City and Long Beach laws are still effective, as they did not have a set expiration date.

In addition to extending the duration of the leave, a few localities made changes to their laws, including Oakland, Sonoma County and Los Angeles City.

Oakland

  • Permits employers who provided leave under the FFCRA and California’s two statewide supplemental paid leave laws to offset against its obligation.
  • Adds leave for short-term employees, those employed between 1/1/21 and 1/21/21. The leave amount is equal to the total number of hours worked in Oakland over the 14 business days.

Sonoma County

  • Permits employers who provided leave under California’s two statewide EPSL, FFCRA and Cal-OSHA regulations to offset against its obligation.
  • Requires redistribution of an updated notice detailing employee rights on the company intranet, app platform and email.

Los Angeles City

  • Expands the number of employees who can get leave to those employed for at least 60 days by the same employer. Previously, pandemic leave was only available to employees working between the date range of 2/3/20 – 3/4/20.
  • Determines the eligible amount of pandemic leave based upon employees’ 2-week average over the last 60 days of employment. It’s unclear if this applies to employees who previously received leave.

The Business Group recommends that affected employers:

  • Review current leave policies to determine what changes to leave provisions you may need to make to accommodate the extended local requirements, including reviewing leave taken when the local laws were not in effect; and
  • Work with HR, payroll and any third-party vendors to determine what steps, if any, should be taken to comply.

Next Steps

If you have questions, comments, or concerns about these or other regulatory and compliance issues, please contact us.

We provide this material for informational purposes only; it is not a substitute for legal advice.

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TABLE OF CONTENTS

  1. Colorado
  2. California
  3. Next Steps