Update: Governor Newsom signed SB-95 on March 19, 2021. Therefore, employers have until March 29, 2021 to ensure compliance with the new requirements.
California’s supplemental paid sick leave for employees and food sector employees expired on December 31, 2020. Just as California businesses are starting to reopen, California’s legislature passed and presented to Governor Newsom today (March 19, 2021) a new supplemental paid sick leave bill (SB-95) extending paid sick leave for California employees until September 30, 2021. Unlike the prior California COVID-19 paid sick leave law that applied to employers with more than 500 employees, the new law expands coverage to employers with more than 25 employees. Here are five issues California employers need to know about the new paid sick leave law if Governor Newsom signs the bill (which is expected):
1. Covered employers
The new law would apply to employers with more than 25 employees. If signed by the Governor, the law requires the Labor Commissioner to made available within 7 days a poster required for employers to post in their workplaces.
The law also sets forth requirements for in-home supportive services, which is not addressed in this article.
2. Effective time period
The law retroactively applies to employers going back to January 1, 2021. The law expires on September 30, 2021.
3. Qualifying reasons for paid sick leave
The law requires employers to pay COVID-19 supplemental paid sick leave to employees who are unable to work or telework due to any of the following reasons:
- The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
- The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
- The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
- The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The covered employee is caring for a family member, as defined in subdivision (c) of Section 245.5, who is subject to an order or guidelines described in subparagraph (A) or who has been advised to self-quarantine, as described in subparagraph (B).
- The covered employee is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
4. Amount of paid sick leave required
Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they are considered full time, or if the employee worked or was schedule to work, on average, at least 40 hours per week for the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave. Otherwise, employees are entitled to their total number of hours they normally are scheduled to work for the employer over two weeks, and if the employee works a variable schedule, then they receive 14 times the average number of hours worked in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. The law also sets forth how employers are to calculate each hour of COVID-19 supplemental paid sick leave for exempt and non-exempt employees.
Limited Use of Other Leaves
The supplemental paid sick leave must be in addition to any paid sick leave available to the employee pursuant to the Healthy Workplaces, Healthy Families Act of 2014 as set forth in Labor Code section 246. Employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses COVID-19 supplemental paid sick leave. However, employers may require employees to first exhaust their supplemental paid sick leave prior to paying employees under the Cal-OSHA COVID-19 Emergency Temporary Standards.
Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave. However, if federal legislation amended these limits as set forth in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA), then the increased limits would apply to the California law.
Amount Must Be Set Forth In Writing To Employee
Employers must set forth the amount of COVID-19 supplemental paid sick leave available to an employee on the employee itemized wage statement or other writing provided on the designated pay date with the employee’s payment of wages. For employees who work variable schedules, employers must perform an initial calculation of paid sick leave available and then indicate “(variable)” next to the calculation. Then the employer must update the calculation when the employee requests covered paid leave or request records under Labor Code section 247.5.
5. Retroactive pay required to employees
If signed by the Governor, the law requirement to provide COVID-19 supplemental paid sick leave takes effect 10 days later, but the law shall apply retroactively to January 1, 2021. Therefore, if an employee has taken leave since January 1, 2021 which was not paid by the employer, and is covered by one of the qualifying reasons for paid leave, upon the employee’s oral or written request by the employee, the employer is required provide the employee with a retroactive payment. This payment must be made on or before the payday for the next full pay period after the request is made. The employer must reflect this payment on the itemized wage statement or another writing provided to the employee on the designated pay date.
For additional updates on this new proposed law, as well as other California employment laws facing employers as they reopen their businesses, will be provided during my firm’s webinar on March 24, 2021 at 10 a.m. PT. Registration for the webinar is here.