Employment Law Bulletin | March 23, 2021

State of California Revives, Expands and Extends COVID-19 Supplemental Paid Sick Leave – Employer Action Required Now!

On March 19, 2021, Governor Newsom approved Senate Bill 95 (SB 95), reviving an expired 2020 law that required employers to pay COVID-19 Supplemental Paid Sick Leave (SPSL).  Although SB 95 contains similar requirements to its predecessor, there are significant changes with respect to the employers it covers, who is eligible to receive SPSL, the reasons for use, and how previously paid SPSL can be used to offset an employer’s obligation.  As discussed in more detail below, employers are required to provide SPSL retroactively to January 1, 2021, and must continue to provide SPSL until the law’s expiration on September 30, 2021.

Covered Employers:  Under 2020 California law, SPSL applied to employers of 500 or more.  The new law now requires employers with more than 25 employees to provide SPSL.

Eligible Employees:  An employee is eligible for SPSL if the employee makes an oral or written request for time off and is unable to work or telework for one of the reasons listed below.  The 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 CDC, or a local health officer with jurisdiction over the workplace,
• has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19,
• is attending an appointment to receive a vaccine for protection against contracting COVID-19,
• is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework,
• is experiencing symptoms of COVID-19 and seeking a medical diagnosis,
• is caring for a family member who is subject to a quarantine or isolation order or guidelines, or who has been advised to self-quarantine by a healthcare provider, or
• is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Amount of Leave:  Full-time employees are eligible for up to 80 hours of SPSL.  Part-time employees who work recurring schedules are entitled to SPSL equal to the total number of hours they are typically scheduled to work in a two-week period.  Part-time employees with variable schedules should receive SPSL equal to the average number of hours worked in the preceding six months, or during the period the employee has worked for the employer.  Employees who have worked 14 days or fewer can expect to receive SPSL equal to the total number of hours they have worked for the employer.  Employers taking time off for one of the reasons listed above may not require employees to use any other paid or unpaid time off before using SPSL.

Retroactivity:  SB 95 is retroactive to January 1, 2021, meaning that an employee must be paid SPSL for any time previously taken off work for the above reasons dating back to January 1, 2021.  The retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request is made.

Previously Provided Paid Leave:  Unlike many local ordinances that allow employers to credit 2020 COVID paid sick leave time against 2021 requirements, SB 95 provides employees with a new allotment of up to 80 hours of SPSL for 2021.  However, any COVID-related supplemental paid sick leave already taken in 2021 prior to the passing of the law, may be used to off-set the new SPSL requirement.  Regular paid sick leave already required by state law cannot be used as a credit towards the employer’s SPSL obligation.

Pay Amount:  As under the prior law, employees must be paid at their regular rate of pay up to $511 per day, not to exceed $5,110.  SB 95 clarifies non-exempt pay stating that non-exempt employees must be paid at the highest of (i) their regular rate of pay during the workweek in which they take the leave; (ii) the total wages (not including overtime) divided by the total hours worked in the past 90 days of employment; or (iii) the state or local minimum wage.

Notice:  Within seven days of the law’s enactment, the Labor Commissioner will publish a notice of the new law that employers are required to post or provide to employees.  For employees who do not frequent the workplace, the notice may be e-mailed.

Paystubs:  Employers must also provide the employee’s available SPSL balance on wage statements or in a separate writing. For employees working variable schedules, employers may comply with this obligation by performing an initial calculation of paid leave available, and then indicate “variable” next to that calculation.  Updated calculations must be provided upon request and when the employee requests to use the leave.

Recordkeeping:  Employers must maintain records of hours worked and SPSL hours accrued and used by employees for at least three years.

Anti-Retaliation & Remedies:  The law prohibits retaliation against employees for requesting or using SPSL.  Employees who believe their rights have been violated may file an action in court or with the Labor Commissioner.

Firefighters and In-Home Care Providers:  SB 95 contains different rules for these categories of workers.  If you have employees who fit this description, contact an SMT employment law attorney for more information.

Employers covered under SB 95 must comply within 10 days of its enactment, so it is important to act quickly to comply with the new law’s notification, paystub and paid sick leave requirements.  If you have questions or need help navigating the new California SPSL law, please contact an SMT employment law attorney at info@www.smlaw.com.

Kari Brown

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Spaulding McCullough & Tansil LLP
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Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown