California Reinstates COVID-19 Supplemental Paid Sick Leave

On March 19, 2020, Governor Newsom signed Senate Bill 95 (“SB 95”), which requires employers with 26 or more employees to provide up to 80 hours of Supplemental Paid Sick Leave (“SPSL”) to eligible employees.  SB 95 takes effect March 29, 2021, and will expire on September 30, 2021.

Previously, in September 2020, Assembly Bill 1867 provided 80 hours of SPSL benefits to employees of employers with 500 or more employees, for limited qualifying reasons.  However, AB 1867 expired December 31, 2020.

SB 95 expands the qualifying reasons for which employees may use SPSL.  Employees who are unable to work or telework may use SPSL if any of the following apply:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, as defined by an order or guidelines of the State Department of Public Health, the federal CDC, or a local health officer who has jurisdiction over the workplace.
  • The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevent them from working or teleworking.
  • 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 a federal, state, or local quarantine or isolation order related to COVID-19, or who has been advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for COVID-related reasons.

SB 95 provides a new bank of SPSL that applies retroactively to January 1, 2021.  Full-time employees are entitled to 80 hours of SPSL and part-time employees are entitled to a prorated amount of SPSL. 

For non-exempt employees, each hour of SPSL shall be compensated at the highest of the following:

  • The employee’s regular rate of pay for the workweek in which the employee uses the SPSL, regardless of whether the employee actually works overtime in that workweek.
  • The employee’s total non-overtime wages divided by the employee’s total hours worked in the full pay periods occurring during the prior 90 days of employment;
  • The state minimum wage; or
  • The local minimum wage to which the employee is entitled.

SB 95 caps SPSL benefits at $511 per day and $5,110 in the aggregate.

Employers may not require employees to use other leave before using SPSL; however, employers may offset other COVID-19  paid leave provided to employees for the above reasons after January 1, 2021, if the leave was paid at the same rate required by SB 95. For example, employers may have voluntarily paid emergency paid sick leave pursuant to the FFCRA, or as required by local ordinances.

As with AB 1867, employers must provide notice to employees of their leave rights; the Labor Commissioner is directed to publish a model notice by April 5, 2021.  Employers must also include the available SPSL balance on employees’ itemized wage statements.  The wage statement requirement goes into effect at the start of the next full pay period after March 29, 2021.

As stated above, SB 95 applies retroactively to January 1, 2021. An employer must provide an employee with a retroactive payment for the period of leave if:

  • the employee took leave on or after January 1, 2021 which would otherwise have qualified as COVID-related SPSL under SB 95, and
  • the employer did not provide paid leave (paid at the rates identified above) to the employee upon oral or written request.

Employers must provide retroactive payments to employees on or before the next full pay period after an employee requests such payment (orally or in writing), and must identify this payment on the corresponding wage statement.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 
© 2021 Atkinson, Andelson, Loya, Ruud & Romo

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