©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 41 Enforcement. Until a Covid-related 2020 amendment took effect as urgency legislation, enforcement of California’s PSL leave law was through administrative proceedings where the Labor Commissioner could award relief after a hearing “containing adequate safeguards to ensure the parties due process, including reinstatement, back pay, payment of sick days unlawfully withheld, and additional sums in the form of an administrative penalty to employees whose rights were violated.”139 The 2020 amendments removed the “due process language” and simply provided that the Labor Commissioner “may order any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty to an employee or other person whose rights under this article were violated.”140 The administrative penalties vary depending on the violation. If paid sick days have been unlawfully withheld, then the administrative penalty is the greater of the value of those sick days multiplied by three or $250, not to exceed an aggregate penalty of $4,000. For other types of violations the penalty is $50 per day while the violations continue, not to exceed an aggregate penalty of $4,000.141 2.14.2 Covid-19Paid Sick Leave Legislators at national, state, and local levels all decisively addressed the effect of Covid-19 on workers, acting with general agreement that employers rather than governments should provide the desired relief. National legislation. The Families First Coronavirus Response Act (FFCRA), which mandated paid leave through December 31, 2020, required certain employers with fewer than 500 employees to provide most employees with paid sick leave or expanded family and medical leave for specified reasons related to Covid-19.142 Following the expiration of the FFCRA, under the Consolidated Appropriations Act of 2021, employers could voluntarily continue to offer FFCRA paid leave into 2021 in exchange for an extension of the corresponding tax credits through March 31, 2021.143 On March 11, 2021, President Joe Biden signed the American Rescue Plan Act of 2021 (ARPA) into law. California legislation—supplemental paid sick leave. The Covid-19 pandemic complicated the patchwork quilt of state and local paid sick leave laws. In an attempt to close gaps left by the federal FFCRA, cities, counties, and the state of California imposed various overlapping requirements.144 Initially, Governor Newsom, by Executive Order N-51-20 (signed April 16, 2020), required California employers with 500 or more employees nationwide to provide Covid-19 paid sick leave to certain food sector workers. California’s more expansive Supplemental Paid Sick Leave efforts began on September 9, 2020, when California enacted its first state-wide Covid-19 supplemental paid sick leave law (2020 CA-SPSL). The 2020 CA-SPSL created PSL obligations for Covid-related reasons, applying both to food sector and nonfood-sector employees, and generally applied to employers with fewer than 500 employees (with some exceptions for emergency responders).145 The legislation required employers to provide covered employees with two weeks (up to 80 hours for full-time employees)146 of paid leave for a limited set of Covid-related reasons involving the employee, not including care of family members.147 While the 2020 CA-SPSL leave was in addition to sick leave already provided under California’s general sick leave law148 and other employer-provided sick leave, certain offsets were permitted.149 It also included a wage statement requirement. The 2020 CA-SPSL law expired on December 31, 2020, consistent with the FFCRA’s sunset. California employers then wondered whether or how California would extend paid sick leave for Covid-related reasons. In the meantime, employers had to comply with a patchwork of local paid sick leave laws throughout California. For example, Los Angeles City and County, Oakland, Sacramento City and County, San Francisco, San Jose, and others each enacted their own Covid-related paid sick leave laws.
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