California’s New COVID-19 Supplemental Paid Sick Leave Law for 2021
Employers with over 25 employees must provide COVID-19 supplemental paid sick leave to their workers in California following Governor Gavin Newsom signing SB 95 into law on March 19, 2021. The law does not substitute existing paid leave requirements and greatly expands upon a similar law from September 2020 that expired at the end of the year. SB 95 has several key differences from the September bill that employers should keep in mind as the law has already gone into effect and impacts a much broader range of employers and workers.
How is SB 95 different from the September 2020 law (AB 1867)?
The previous iteration of California’s COVID-19 paid sick leave law only applied to private employers with 500 or more employees. SB 95 applies to all employers in California—public or private—with more than 25 employees. Under this new law, employees are entitled to supplemental paid sick leave if they are unable to work or telework due to a predetermined list of COVID-related circumstances. Last year’s law did not apply to employees who teleworked.
Further, the list of COVID-related reasons an employee can cite to be eligible for supplemental paid sick leave has expanded. Previously, only an employee subject to a quarantine or isolation order, advised by a health care provider to self-quarantine or self-isolate, or prohibited from working due to COVID-19 health concerns was eligible for supplemental paid sick leave. The new list of qualifying circumstances enabling an employee to receive supplemental paid sick leave is generally much broader.
Who is eligible for this benefit?
Any California employee working for an employer with over 25 employees is eligible if they cannot work or telework due to any of the following COVID-related circumstances:
The employee is subject to a quarantine or isolation period related to COVID-19, as defined by a federal, state, or local health department or officer that has jurisdiction over the workplace. If the employee is subject to quarantine or isolation under multiple jurisdictions (i.e., both state and local health department rules), the duration of their supplemental paid sick leave will correspond to the longer minimum period.
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
The employee is attending an appointment to receive the COVID-19 vaccine.
The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.
The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
The employee is caring for a family member who is subject to an order or guidelines or who has been advised to self-quarantine. A family member is defined as: (1) a child (as defined below); (2) a biological, adoptive or foster parent, stepparent, or legal guardian of the employee or the employee’s spouse or registered domestic partner; (3) a spouse; (4) a registered domestic partner; (5) a grandparent; (6) a grandchild; or (7) a sibling.
The 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. A child is defined as a biological, adopted, or foster child, stepchild, legal ward, or a child to whom an employee stands in loco parentis, regardless of age or dependency status.
Over what time period does it apply?
The new law applies retroactively to the start of 2021 and extends until September 30, 2021. This means if an employee has taken leave for any of the above reasons since January 1, 2021, that was not paid by the employer, the employer is required to provide the employee with retroactive payment upon the employee’s oral or written request.
This retroactive payment must be paid on or before the scheduled payday for the next full pay period after the employee’s request has been made. The employer is also required to reflect this payment on the itemized wage statement or another writing provided to the employee on the designated pay date.
How much paid sick leave is an employee able to obtain?
Employees are entitled to 80 hours of paid sick leave if they are considered “full time” or if they were scheduled to or did work on average at least 40 hours per week in the two weeks before the date of the leave.
Employees not deemed “full-time” are entitled to the total number of hours they are normally scheduled to work for the employer over two weeks. Employees who work a variable schedule receive 14 times the average number of hours worked per day in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. If an employee has worked for an employer for under six months (but more than 14 days), this calculation must be made over the entire period the covered employee has worked for the employer. Employees who have worked for an employer for under 14 days are entitled to supplemental paid sick leave equal to the total number of hours that they have worked for their employer.
The hours to which an eligible employee is entitled to receiving are in addition to any paid leave that may be available under other state or local laws. Employers cannot require their workers to exhaust other forms of leave or vacation time before allowing them to make use of the leave afforded to employees under SB 95.
How much money is the employee entitled to receive?
Exempt employees (i.e. those not eligible for overtime compensation) will have their supplemental sick leave pay calculated in the same manner in which their employer calculates wages for other forms of paid leave. For non-exempt employees, each hour must be paid at a rate equal to the highest of the following:
The employee’s regular rate of pay for the workweek in which the leave is taken;
A rate calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
The state minimum wage; or
The local minimum wage
The amount of COVID-19 supplemental paid sick leave an employer is required to pay caps at $511 per day and $5,110 in the aggregate. However, if this cap is reached, employees can utilize other forms of available paid leave to receive what they otherwise would have earned.
What other responsibilities do employers have?
Employers must display a poster explaining the parameters of the supplemental paid sick leave law. If employees do not regularly work in a physical workplace, the notice may be shared with them electronically.
Moreover, as is the case with regular paid sick leave, employers subject to this law must also provide notice in an eligible employee’s wage statement showing the amount of available COVID-19 supplemental paid sick leave for each pay period. This amount must be accounted for in a separate line item from regular paid sick leave on the wage statement.
As California’s economy prepares to reopen, the experienced employment attorneys at Thakur Law Firm will continue to monitor the changing legal and regulatory landscape to best prepare our business clients. If you have any questions about compliance with COVID-19-related obligations, please do not hesitate to contact the Thakur Law Firm today.