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22 Mar

March 2021: New California COVID-19 Paid Sick Leave Requirements (SB-95 Update)

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New COVID-19 Paid Sick Leave

Update Applicable to:
All California employers with more than 25 employees.

What happened?
On March 19, 2021, SB-95 was signed by Governor Newsom and has an effective date of March 29, 2021.

What are the details?
SB-95 acts as a revamp to the previously provided COVID-19-related paid sick leave that California mandated for employers. This time around there are several expansions to the requirements, and even more employers will be required to provide this leave. The bill also applies retroactively, back to January 1, 2021. The act will expire on September 30, 2021.

Covered Employers
The bill impacts employers with more than 25 employees.

Covered Employees
Any employee that is unable to work remotely or telework.  However, the legislation does add a provision for in-home supportive services, meaning that they will now be included in the coverage of the legislation.

Qualified Reasons
Covered employees will be able to utilize the COVID-19-related paid sick leave for the following reasons:

  • The covered employee or provider “is subject to a quarantine or isolation period related to COVID-19” as defined by an order or guidelines of the California Department of Public Health, the U.S. Centers for Disease Control and Prevention, “or a local health officer who has jurisdiction over the workplace.”
  • A health care provider has advised the covered employee or provider to self-quarantine because of COVID-19–related concerns.
  • The covered employee or provider “is attending an appointment to receive” a COVID-19 vaccine.
  • The covered employee or provider “is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.”
  • The covered employee or provider is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  • “The covered employee is caring for a family member … who is subject to an order or guidelines described” in qualifying reason (1), or who a health care provider has advised to self-quarantine, as described in qualifying reason (2), SB-95 defines family members to include the employee’s spouse, registered domestic partner, parent (including parents-in-law), child (regardless of age or dependency), grandparent, grandchild, and sibling.
  • The covered employee or provider “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.”

Entitlement Amount
Full-time employees will generally receive 80 hours of paid sick leave in most cases, and part-time workers will receive an average of their last two week’s hours worked. Workers are entitled to the 80 hours if the company considers the employee to be full-time, or if the employee works at least 40 hours per week in the two previous weeks before the usage of their paid sick leave. Part-time employees will have their leave entitlement calculated based on the following:

  1. “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.”
  2. “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 fewer 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.”
  3. “If the covered employee works a variable number of hours and has worked for the employer for14 days or fewer, the total number of hours the covered employee has worked for that employer.”

Retroactive Leave Provision
SB-95’s retroactive provision allows employees to replace hours they had used since January 1, 2021, of paid leave, and instead to use the COVID-19 related paid sick leave. This allows employees to regain the hours of paid leave they may have used in the past, by instead reducing their amount of COVID-19-related paid sick leave. The retroactive provision may only apply for the qualifying leave reasons that are listed above. Once an employee makes an oral or written request for such, the employer must make this payment on or before the payday for the next full pay period after the employee makes the oral or written request. The employee’s wage statement must separately show and list the payment and reflect the hours available, rate of pay, and corresponding COVID-19-related paid sick leave balance after this type of request.

Leave Credit
Employers who were still offering Families First Coronavirus Response Act (FFCRA) leave after December 31, 2020, may credit the amount of FFCRA paid sick leave used by employees against the required hours to be provided by this legislation. These credits only apply for FFCRA usage that took place after December 31, 2020.

Pay Calculation and Cap
SB-95 requires employers to calculate their nonexempt employees pay when using the paid sick leave to be the higher of the following four calculations:

  1. The employee’s “regular rate of pay for the workweek in which” COVID-19 SPSL was taken, regardless of whether the employee worked overtime in that workweek;”
  2. “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;”
  3. The California minimum wage; or
  4. The local minimum wage.

The bill requires employers to pay their exempt employees the same as they would for the usage of other paid leaves the employer offers. Employee pay for usage of COVID-19 related paid sick leave is capped at $511 per day and $5,110 in the aggregate for each covered employee.

Usage of Other Paid Leave
Employers may not force employees to use their other forms of paid leave they might have banked before their usage of the COVID-19-related paid sick leave. However, employers may require employees to use their COVID-19-related paid sick leave before utilizing the exclusionary pay required by the California Division of Occupational Safety and Health’s, or Cal/OSHA’s, COVID-19 Emergency Temporary Standard (ETS).

Wage Statement Requirement
Wage statements have not changed since the requirements from last year. Employers must show the balance of available COVID-19-related paid sick leave on the employee’s wage statement as a distinct line item. It must be separated from other forms of paid sick leave the employee may have. The wage statement requirement becomes effective the first full pay period after the statute’s effective date.

Notice Requirement
Finally, the bill will include a posting and notice requirement. Employers will need to post a notice of the COVID-19-related paid sick leave in a conspicuous place in the workplace. The model notice will be provided by the labor commissioner within seven days of the statute’s enactment. If the covered employees are not likely to see the notice in the workplace, the employer may satisfy the notice requirement by distributing the notice through electronic means, such as email.

Applicable Links
The full legislation of SB-95 can be found here.

Articles summarizing the bill can be found here and here.

A nearly identical bill is making its way through the California legislature and may pass as well, this one under the name AB-84. It contains the same requirements as SB-95, but as of March 19, 2021, the bill has only just finished review by a committee. AB-84 can be read and tracked here.

What do employers need to do?
Covered California Employers should review the above information and update their workplace practices to reflect the requirements. Training for management staff may be needed to ensure employees are not accidentally denied a leave they are entitled to. Employers should keep a watch on the Labor Commissioner’s website to ensure they receive the required notice as soon as possible. The required posting may be placed online at this address.

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Update

The Labor Commissioner’s Office has made the required notice available online, here. Employers will need to post the notice in the workplace or distribute the notice via other means, like email, to any employees that are unlikely to see the notice in the workplace

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