California’s New COVID-19 Vaccination Leave
In California, workers who need time off to receive the COVID-19 vaccine or recover from immune related responses may be entitled to paid leave. Here's what California employers need to know about what the law covers and how to apply the leave retroactively.
The COVID-19 Vaccination Leave applies to all employers and employees who work for the same employer for 60 days. Employees can use this paid leave for travel time, getting the shot, and recovering from its related side effects that prevent them from working or teleworking. Employees can request the leave orally or in writing.
The vaccination leave is effective June 24, 2021, applies retroactively to January 1, 2021, and expires on September 30, 2021.
Generally, employers must give their full-time employees up to four hours of leave to get each shot and up to eight hours to recover from it. They must give their part-time employees a prorated amount of four hours per shot based on the average number of hours the part-time employee worked in the 60 days before getting vaccinated, and up to the prorated amount of eight hours to recover. For instance, for a part-time employee who worked 240 hours in the last 60 days (including non working days):
- The 240 hours they worked is divided by 60 days, which equals an average of 4 hours per day;
- Then the average of 4 hours per day times 7 days equals an average of 28 hours of work per week; and
- At a prorated rate, they are eligible for 2.8 hours (2 hours 48 minutes) per vaccine injection and 5.6 hours (5 hours 36 minutes) for vaccine recovery.
However, the vaccination leave differs for employers with more than 25 employees; their employees must first exhaust all available California SPSL or Los Angeles SPSL before they are entitled to the COVID-19 Vaccine Leave.
Calculating Pay and Other Leaves
Each hour of the leave is calculated as follows:
- Nonexempt employees must be paid the higher of:
- Their normal pay for the week they took leave;
- $15 per hour (city’s minimum wage); or
- Their average hourly pay for the preceding 60 days (not including overtime).
- Exempt employees must be paid the same as the employer pays other paid leaves.
The leave can’t exceed $511 per day (or $255.50 per every four hours), or $1,022 total, unless a higher federal rate is created.
This vaccination leave is in addition to other available paid leave and employers can’t require employees to use other paid or unpaid leave before using the COVID-19 Vaccination Leave.
Employers can ask for written verification that the employee got the shot before paying them for the leave.
Applies Retroactively and Wage Statements
The order applies retroactively to January 1, 2021. This is in an effort to protect employees who took leave to get vaccinated after January 1, 2021, but before this order took effect (on June 24, 2021). Employees that took time off to get vaccinated (or recover from it) on or after January 1, 2021, and didn’t get paid the amount required by the order, must be paid the difference by their employer on or before the payday for the next full pay period after the employee requests it. Also, if the employer required its employees to use their vacation, paid or unpaid time off, or other sick leave benefits to get vaccinated, then upon the employee’s request, the employer must:
- Reclassify the paid leave that was taken to get vaccinated as this new COVID-19 Vaccination Leave; and
- Restore the leave used to its original purpose.
For instance, an employee used their vacation leave to take time off to get vaccinated. Upon the employee’s request, the employer must reclassify the leave as COVID-19 Vaccination Leave (applied as required by the order) and their vacation time taken must be restored to their vacation leave bank.
Additionally, any reclassification, restoration, or adjustment of the employee’s previously taken leave, along with the remaining hours of COVID-19 vaccination leave available, must be on the employee’s wage statement on or before the payday for the next full pay period after they request it.
Additional Leave as an Offset
If the employer gives their employees another, additional, paid supplemental benefit for leave taken on or after January 1, 2021—and it’s for getting vaccinated just like under the city order—then employers can count the hours of the other supplemental benefit toward the total number of hours required by the order (an offset).
Retaliation for taking vaccination leave is prohibited.
Exemption for Collective Bargaining Agreement
Collective bargaining agreements (CBA) in place on June 24, 2021, with COVID-19 Vaccination Leave, can supersede the city’s order. When the CBA expires or is being renegotiated, the order’s requirements can only be waived if explicitly stated in the agreement, clearly and unambiguously. If a CBA is in place on June 24, 2021, but it doesn’t have vaccine leave, then the employer must comply with the city’s order until the CBA is amended to expressly waive it.
Notice and Enforcement
The order does not contain notice requirements but it’s logical to assume covered employers must notify their employees about this vaccination leave, ensure they understand their rights, and are able to exercise them.
Employees are entitled to reinstatement, backpay, and other relief if an employer violates the order.
Vaccination Leave Expires
The COVID-19 Vaccination Leave is effective until September 30, 2021, but if employees are taking vaccination leave when it expires, they must be allowed to take the full amount of leave under the order.
To learn more about vaccinations and masking policies, check out Return to Work, Vaccination, and Masking Policies — FAQ.
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