California Expands COVID-19 Supplemental Paid Sick Leave Through September 30, 2021 for Employers in California with More than 25 Employees 

March 23, 2021
On March 19, 2021, Governor Newsom signed Senate Bill 95, which requires employers in California with more than 25 employees to provide COVID-19 supplemental paid sick leave to covered employees. The bill takes effect immediately and employers have until March 29, 2021 to ensure compliance with the new requirements, at which time the requirements will apply retroactively to January 1, 2021. California’s previous supplemental paid leave (covered here) expired on December 31, 2021. SB 95 broadens the circumstances under which an employer is required to provide leave, and will remain in effect until September 30, 2021.
  • Covered Employers. Covered employers are employers in the state of California with more than 25 employees.
     
  • Covered Employees. Covered employees are defined as employees who are unable to work or telework for an employer due to any of the reasons which qualify the employee for COVID-19 supplemental paid sick leave.
     
  • Qualifying Reasons for COVID-19 Supplemental Paid Sick Leave. An employer must provide COVID-19 supplemental paid sick leave to each covered employee if that covered employee is 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 State Department of Public Health, the Centers for Disease Control or 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 must 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;
    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 symptoms of COVID-19 and seeking a medical diagnosis;
    6. The covered employee is caring for a family member who is subject to a quarantine or isolation period related to COVID-19 or who has been advised to self-quarantine due to COVID-19; 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.
       
  • Amount of COVID-19 Supplemental Paid Sick Leave. A covered employee is entitled to the following COVID-19 supplemental paid sick leave:
    1. 80 hours of COVID-19 supplemental paid sick leave, if:
      • The employer considers the covered employee to work full-time; or
      • The covered employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave.
    2. A covered employee who does not satisfy the criteria above is entitled to an amount of COVID-19 supplemental paid sick leave as follows:
      • 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.
      • 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 must instead be made over the entire period the covered employee has worked for the employer.
      • 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.
A covered employee may determine how many hours of COVID-19 supplemental paid sick leave to use, up to the total number of hours to which the covered employee is entitled. Upon the oral or written request of the covered employee to the employer, the employer must make COVID-19 supplemental paid sick leave available for immediate use by the covered employee.
  • Compensation Rate. Each hour of COVID-19 supplemental paid sick leave must be compensated at a rate equal to the following:
    1. For non-exempt covered employees, by the highest of the following:
      • Calculated in the same manner as the regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek;
      • Calculated by dividing the covered 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 to which the covered employee is entitled.
    2. For exempt covered employees, COVID-19 supplemental paid sick leave must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
       
  • Cap on Amount of Leave. An employer is 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 unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (“FFCRA”), in which case the new federal dollar amounts shall apply to this section as of the date the new amounts are applicable under the federal law. A covered employee who has reached the maximum amounts of COVID-19 supplemental paid sick leave may choose to utilize other paid leave that is available to the covered employee in order to fully compensate the covered employee for leave taken. Our prior memorandum on FFCRA leave can be found here.
     
  • Interaction with Other Available Relief. The total number of hours of COVID-19 supplemental paid sick leave to which a covered employee is entitled is in addition to any paid sick leave that may be available to the covered employee under California Labor Code section 246. An employer must not require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave. To satisfy the requirement to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure under Title 8 of the California Code of Regulations at sections 3205-3205.4 and 5199, an employer may require a covered employee to first exhaust their COVID-19 supplemental paid sick leave.
     
  • Employer Offset. If an employer pays a covered employee another supplemental benefit for leave taken on or after January 1, 2021 that (1) is payable for one of the qualifying reasons set forth above and (2) compensates the covered employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered employee is entitled, then the employer may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide. The other supplemental benefit for leave taken that may be counted does not include paid sick leave to which the covered employee is entitled under California Labor Code Sections 246, 248(e) or 248.1(f) but may include paid leave provided by the employer pursuant to any federal or local law in effect or that became effective on or after January 1, 2021, if the paid leave is provided to the covered employee under that law for any of the same reasons for which leave is available under SB 95.
     
  • Enforcement. The law requires the Labor Commissioner to enforce the requirements as if COVID-19 supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave” under various provisions of the California Labor Code. Employees using or attempting to exercise their rights to COVID-19 supplemental paid sick leave are protected from retaliation under Labor Code section 246.5(c).
     
  • Notice. Starting with the next full pay period following the date of the law’s enactment, employers must provide employees with written notice that sets forth the amount of supplemental paid sick leave available for use, separate from paid sick days, on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. Additionally, the availability of COVID-19 supplemental paid sick leave must be included in the workplace notice required under California Labor Code section 247.  The Labor Commissioner will make a model notice publicly available by March 26, 2021. For purposes of COVID-19 supplemental paid sick leave only, if an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means, such as by electronic mail.
     
  • Retroactive Effect. The requirement to provide COVID-19 supplemental paid sick leave takes effect 10 days after the date of enactment of this section on March 29, 2021, at which time the requirements apply retroactively to January 1, 2021. The provisions governing retroactive payments are as follows:
    1. For any such leave taken, if the employer did not compensate the covered employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered employee is entitled under the new law, then upon the oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.
    2. For any such retroactive payment, the number of hours of leave corresponding to the amount of the retroactive payment shall count towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide to the covered employee.
    3. Retroactive payments must be paid on or before the payday for the next full pay period after the oral or written request of the covered employee. The retroactive payment must be reflected on the written notice for the corresponding pay period.
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.