New California COVID-19 Supplemental Paid Sick Leave Law Goes Into Effect on March 29, 2021

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

New California COVID-19 Supplemental Paid Sick Leave Law Goes Into Effect on March 29, 2021

On March 19, 2021, Governor Newsom signed Senate Bill (“SB”) 95, kicking off a 10-day countdown until California’s new COVID-19 supplemental paid sick leave (“SPSL”) law goes into effect. SB 95 requires most California employers to provide up to 80 new hours of SPSL to employees who are unable to work due to COVID-19. The key provisions of this legislation are summarized below.

Covered Employers

Starting March 29, 2021, “covered employers” must provide these SPSL benefits. A business is a “covered employer” under SB 95 if it employs more than 25 employees.

Covered Employees

              A “covered employee” entitled to SPSL includes any employee who is unable to work or telework for a covered employer for one of the reasons listed in the statute (see below).

Reasons for Taking SPSL

              Covered employees may take SPSL if they are unable to work or telework due to any of the following reasons:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace;
2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19;
4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
5. The covered employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
6. The covered employee is caring for a family member (i.e., a child, parent, spouse, registered domestic partner, grandchild, or grandparent), who is subject to an order or guidelines described in qualifying reason (1) or who has been advised to self-quarantine, as described in qualifying reason (2); or
7. The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises. 

Retroactive Use of SPSL

              Pursuant to SB 95, all covered employees may use SPSL during the period from January 1, 2021 through September 30, 2021. Thus, covered employees may claim SPSL benefits retroactively to the start of this year. 

Amount of SPSL

Generally, full time employees are entitled to 80 hours of SPSL, while part-time employees are entitled to an amount of SPSL correlating with the number of hours regularly worked over two weeks. Here are the specific rules for how much SPSL a covered employee is entitled to:

Full Time Employees

A covered employee is entitled to 80 hours of SPSL if: (1) the employer considers the covered employee to work full time; or (2) the covered employee worked, or was scheduled to work, on average, at least at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took SPSL.

Part Time Employees

A covered employee who does not meet the definition above (and who is not a “firefighter,” as defined below) is entitled to SPSL as follows:

1. If the covered employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work for the employer over two weeks;
2. If the covered employee works a variable number of hours, 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. If the covered employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the covered employee has worked for the employer;
3. If the covered employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the total number of hours the covered employee has worked for that employer.

Firefighters

Special rules apply for firefighters. A covered employee who is a firefighter who was scheduled to work more than 80 hours for the employer in the two weeks preceding the date the covered employee took SPSL is entitled to an amount of SPSL equal to the total number of hours that the covered employee was scheduled to work for the employer in those two preceding weeks.

Note that SPSL is in addition to any other regular California paid sick leave the covered employee is already entitled to (i.e., paid sick leave under the Healthy Workplace Healthy Family Act of 2014). Moreover, covered employees are entitled to SPSL under SB 95 regardless of whether they used any SPSL last year. 

Payment for SPSL

              SB 95 explains how wages for SPSL are calculated for non-exempt covered employees. According to the bill, each hour of SPSL for non-exempt employees must be paid at the higher of:

1. The employee’s regular rate of pay for the workweek in which SPSL was taken, regardless of whether the employee worked overtime in that workweek;
2. The employee’s total wages (not including overtime premium pay) divided by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
3. The California minimum wage; or
4. The local minimum wage.

Per SB 95, SPSL for exempt covered employees is to be calculated in the same way as the employer calculates wages for other forms of paid leave time.

              Notably, wages for SPSL are capped at $511 per day and $5,110 in the aggregate for each covered employee.

              Because SB 95 is retroactive to January 1, 2021, employers must provide retroactive payment for qualifying leave taken since January 1, once the employee makes an oral or written request for such payment. This payment must be made on or before the payday for the next full pay period after the oral or written request of the employee. The payment must be listed on the employee’s wage statement and reflect the hours taken, rate of pay, and corresponding wages for SPSL.

Employee’s Choice of Leave

              The employer may not require a covered employee to use any other form of paid or unpaid leave or time off before using SPSL. However, the employer may require exhaustion of SPSL prior to providing exclusion pay under the Cal/OSHA COVID-19 Emergency Temporary Standards (“ETS”). That is, if an employee has been excluded from the workplace due to COVID-19 exposure, the employer may require the employee to first use their SPSL benefits before tapping into their exclusion pay benefits under the ETS.

Relation to Other Employer-Provided Leave

              If an employer provides supplemental benefits that are payable for the same reasons listed above, which are equal to or greater than those required under SB 95, then the employer may credit those benefits against the obligation to provide SPSL benefits. Employers may not credit supplemental benefits provided last year against their obligation to comply with SB 95.

Wage Statement Requirements

              The amount of SPSL an employee has available and has used must be listed as distinct line items on the employee’s wage statement (i.e., separately from any other form of paid sick leave or other paid time off).

Notice to Employees

              Covered employers must post a notice of the SPSL requirements in a conspicuous place in the workplace. The Labor Commissioner is to make available a model notice within seven days of the enactment of the statute, which employers may use to satisfy the notice requirement. If covered employees do not frequent the workplace, then the employer may satisfy the notice requirements by disseminating the notice by electronic means (i.e., by email).