March 26, 2021 • Jamie Santos, Katherine A. Ellis
Category: Legal Updates
On March 19, 2021, Governor Gavin Newsom signed into law SB 95, providing supplemental paid sick leave for COVID-related leaves and absences. The supplemental paid sick leave requirements apply in addition to previous paid time off requirements, such as statutory paid sick leave or vacation time provided by the employer. Although the statute requirements do not begin until March 29, 2021, the requirements will apply retroactively to January 1, 2021, and are effective through September 30, 2021. Employers should move quickly to examine and revise their policies, practices, and payroll records for compliance.
Covered Employers and Employees: Covered employees who work full time, including those who worked or were scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee takes COVID-19 supplemental paid sick leave, may receive up to two weeks or 80 hours of COVID-19 supplemental leave.
A covered employee who is not considered full-time, but has a normal weekly schedule, may receive the total number of hours the covered employee is typically scheduled to work for the employer over two weeks.
If a covered employee works variable hours, they may receive 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 takes COVID-19 supplemental paid sick leave. However, if the covered employee worked for the employer for less 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.
If the covered employee works a variable number of hours and has worked for the employer over a period of 14 days or less, the employee may receive the total number of hours that they have worked for the employer.
The total number of hours under COVID-19 supplemental paid sick leave is in addition to any paid sick leave that may be available under existing law. The amount of leave or compensation given to an employee may be offset from leave or other benefits given to that employee on or after January 1, 2021, that would now be covered under this law. This offset does not extend to benefits provided by other required sick leave, such as under the Healthy Workplaces, Healthy Families Act.
Reasons for Leave: Employees may use supplemental paid sick leave if they are unable to work or telework for the following reasons:
- Employee is subject to a quarantine or self-isolation period related to COVID-19 as defined by federal, state, or local orders;
- Employee is advised by a health care provider to self-quarantine due to COVID-19-related concerns;
- Employee is attending an appointment to receive a COVID-19 vaccine;
- Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
- Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
- Employee is caring for a family member who is a subject to a quarantine or self-isolation order or has been advised by a health care provider to self-quarantine due to COVID-19-related concerns;
- Employee is caring for a child whose school or place of care is closed or otherwise unavailable on the premises for reasons related to COVID-19.
Rate of Pay: Each hour of COVID-19 supplemental paid sick leave for nonexempt employees is compensated based on the highest pay rate equal to the following:
- Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses COVID-19 supplemental paid sick leave;
- Calculated by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay period of the prior 90 days worked;
- State minimum wage; or
- Local minimum wage.
For exempt employees, the COVID-19 supplemental paid sick leave is calculated in the same manner as the employer calculates wages for other forms of paid leave time.
All covered employees will be compensated based on the regular rate of pay pursuant to existing law or collective bargaining agreement. The compensation shall not exceed $511 per day or $5,110 in total, unless federal legislation is enacted to increase these amounts.
Employer Obligations: Like with supplemental COVID-19 paid sick leave released last year, SB 95 requires supplemental paid sick leave to be available on employee paystubs. Specifically, the law requires supplemental paid sick leave and regular statutory paid sick leave to be displayed separately on the paystub.
The state has also released a model poster, which employers must display conspicuously in the workplaces or distribute to employees electronically. This poster is available on the Department of Industrial Relations website here.
Other Notable Provisions: SB 95 provides employees with the sole discretion to determine how many supplemental paid sick leave hours they need to use. Employees may also choose whether to use supplemental paid sick leave or a different leave benefit provided by the employer or by the law. Employees may use the supplemental leave immediately and need only make an oral or written request to do so.
When an employee is excluded from the workplace under the COVID-19 Emergency Temporary Standards, an employer may require them to first exhaust their available supplemental paid sick leave before the employer will maintain their earnings. These are only suggestions, and employers should carefully draft their vacation policies with express and clear employer and employee obligations, limitations, and conditions of eligibility in light of McPherson.
For a printable PDF of this article, click here.
THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.