Amid the ongoing COVID-19 pandemic, employers have developed various leaves of absence plans to support employees who contract COVID-19 or come in close contact with a COVID-19 patient. Since the state’s phased reopening began about a month ago, employers have been developing such leave plans to ensure adequate balancing between the need to reopen and the need to maintain a healthy environment for their employees. While the pandemic has brought many things in the world to a halt, for the most part new employment laws that were already set to take effect this year are nevertheless becoming a reality for employers whether they are ready or not. This reality has certainly ensured that employers, public and private, have their hands full. From AB 5, codifying the ABC test to determine whether a worker is an independent contractor or employee, to AB 9 extending the statute of limitations to file discrimination complaints to three years, and many others. Thus, with an effective date of July 1, 2020, it is easy to see how SB 83 would fall off an employer’s radar.
SB 83 extends the duration an employee may receive Paid Family Leave (PFL) benefits from six weeks to eight weeks effective July 1, 2020. Keep in mind that some entities, such as most public employers, are by default excluded from PFL. In other words, the PFL only applies to a public employer if it elects to participate in the program, and the election to participate is based on negotiation between the public employer and a recognized employee organization.
In 2004, California became the first state to provide PFL. The state funds the PFL through the State Disability Insurance (SDI) fund and currently provides for up to six weeks of benefits to employees taking time off from work to care for a spouse, child, grandparent, grandchild, sibling, or domestic partner, or to bond with a minor child within one year of birth or adoption.
SB 83 extends PFL from six to eight weeks. The PFL does not provide for job protection. Rather, employees may qualify for job protection through other leave laws such as the Family Medical Leave Act or the California Family Rights Act. The PFL simply provides employees with compensation of 60%-70% of their gross wages during their leave. Additionally, SB 83 increases the wage replacement benefit for low-wage workers to up to 90% of their gross wages.
Arguably, the ticking time bomb in SB 83 is the requirement that the Governor submit a proposal extending PFL to six months by 2022. Given the prevalent political environment in California, employers should fully anticipate that PFL will extend to six months by 2022. The six-month benefit extension will be limited to baby bonding leaves. Further, the six-month duration will be a total if both parents claim PFL benefits. For example, each parent can receive PFL benefits for three months, or one parent can receive all six months. Since PFL does not currently provide job protection, employees will not be entitled to job protection during this time period. Nevertheless, it is wise to anticipate that the legislature will modify existing law or enact a new law to provide job protection to employees opting to receive the full six months of benefits.
The obvious impact of this change is that eligible employees are soon likely to take leave for eight weeks rather than six weeks. Further, should the six-month extension move forward, eligible employees will likely take as much time as PFL provides benefits, so long as they have corresponding job protection.
So, what should employers do? If PFL applies to your entity, then now is the time to review leave policies, procedures, and practices. The new PFL may be moot if you already offer your employees more generous leave benefits. Moreover, if a union represents the employees, the Memorandum of Understanding between management and the union may govern this issue as well. As you modify your leave policies and evaluate how you will handle the six-week to eight-week change, it is prudent to prepare for the six‑month PFL extension. Connecting with your attorney to revise or draft a leave policy consistent with the ever-evolving leave laws is the wise decision. Essentially, preparation is key; as the old saying goes: failing to prepare is preparing to fail.