New California Law Requires Employers To Provide 2021 COVID-19 Supplemental Paid Sick Leave

By Swerdlow Florence Sanchez Swerdlow & Wimmer

March 26, 2021

On March 19, 2021, California Governor Gavin Newsom signed into law Senate Bill 95, which beginning March 29, 2021, requires employers with more than 25 employees nationwide to provide up to 80 hours of COVID-19-Supplemental Paid Sick Leave to their California employees through September 30, 2021. In many – but not all – instances, employers may be able to receive a full or partial tax credit for the paid leave required by SB 95 pursuant to the federal Family First Coronavirus Response Act (“FFCRA”) and the American Rescue Plan Act of 2021 (“ARPA”) discussed in a prior post.

Qualifying Reasons for Leave

Under SB 95, California employees are eligible for COVID-19 Supplemental Paid Sick Leave if they are unable to work or telework due to any of the following seven reasons:

Caring for oneself:

1.  The employee is subject to a COVID-19 related quarantine or isolation period as defined by an order or guidelines of the California Department of Public Health, the Federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace. The order or guideline must be specific to the employee’s circumstances, rather than a general stay-at-home order.
2.  The employee has been advised by a healthcare provider to quarantine due to COVID-19 related concerns.
3.  The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.

Caring for a Family Member:

1.  The employee is caring for a family member who is subject to an order or guidelines described in qualifying reason 1, or whose healthcare provider has advised to quarantine as described in qualifying reason 2. A family member is defined to include an employee’s spouse; registered domestic partner; child, regardless of age or dependency status, inclusive of adopted, foster, and step-children; parent, including parents-in-law; grandparent, grandchild, and siblings.
2.  The employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.

Vaccine Related:

1.  The employee is attending an appointment to receive the COVID-19 vaccine.
2.  The employee cannot work or telework due to COVID-19 vaccine-related symptoms.

COVID-19 Supplemental Paid Leave may not be conditioned on a medical certification; however, in certain circumstances indicating that the leave request is not for a valid purpose, it may be reasonable to ask for documentation.

Calculating Amount of COVID-19 Supplemental Paid Sick Leave And Rate Of Pay.

Full-time employees are entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave. A covered employee is considered a full-time employee if: 1) the employer considers the employee to work full-time, or 2) the employee worked or was scheduled to work at least 40 hours per week in the two weeks preceding the date the employee took COVID-19 Supplemental Paid Sick Leave.

Employees who do not work full-time are entitled to COVID-19 Supplemental Paid Sick Leave as follows:

1.  If the employee has a normal weekly schedule, the total number of hours the employee is scheduled to work for the employer over a two week period.
2.  If the employee does not have a normal schedule, 14 times the average number of hours the employee worked per day for the employer in the six months preceding the COVID-19 Supplemental Paid Sick Leave. If the employee has worked for the employer for less than six months then the entire working period is used in the calculation.
3.  If the employee has worked for the employer for 14 days or fewer and does not have a normal schedule, the total number of hours the covered employee has worked for that employer.

The hourly rate of pay for the COVID-19 Supplemental Paid Sick Leave for nonexempt employees is the highest of the following rates:

1.  The hourly rate 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, regardless of whether the employee works overtime in that workweek;
2.  The hourly rate calculated by dividing the employee’s total wages, excluding overtime, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
3.  The state minimum wage; or
4.  The local minimum wage to which the employee is entitled.

For exempt employees, the rate of pay shall be calculated in the same manner as the employer calculates wages for other forms of paid leave.

Unlike the Families First Coronavirus Response Act (“FFCRA”) and American Rescue Plan Act (“ARPA”), the amount of COVID-19 Supplemental Paid Sick Leave is capped at $511 per day and $5,110 total per worker, regardless of the qualifying reason for the leave. This is a greater amount of pay than the amount of the tax credit employers may be able to receive for employees who are taking time off for reasons that involve caring for family members.

Retroactivity

SB 95 is retroactive to January 1, 2021, and employers must provide retroactive payment for qualifying leave taken since January 1, 2021, if the employee makes an oral or written request for such payment. Therefore, an employee can use COVID-19 Supplemental Paid Sick Leave for any absence taken on or after January 1, 2021, which was for one of the qualifying reasons discussed above. For example, if a covered employee used paid vacation in January 2021 because he or she was advised by a healthcare provider to quarantine due to COVID-19-related concerns, the employee could ask for, and the employer would be obligated to pay, COVID-19 Supplemental Paid Sick Leave for those days and restore the employee’s vacation bank. Likewise, if an employee took unpaid leave in February 2021 to care for a child whose school or place of care was closed due to COVID-19 on the premises, the employee can ask for, and the employer must pay, COVID-19 Supplemental Paid Sick Leave for those unpaid absences.

Employers must make payments on or before the payday for the next full pay period after the employee makes an oral or written request for retroactive COVID-19 Supplemental Paid Sick Leave. The employee’s wage statement must separately list the payment and reflect the hours available, rate of pay, and corresponding COVID-19 Supplemental Paid Sick Leave wages.

Credit for Leave Previously Provided

The paid leave provided by SB 95 is in addition to any paid sick leave that an employer must otherwise provide under state law and local ordinances. However, if Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) or Cal/OSHA Aerosol Transmissible Diseases Standard (ATDS) requires an employer to maintain an employee’s earnings when the employee is excluded from the workplace due to a work-related COVID-19-exposure, employers may require an employee to first exhaust COVID-19 Supplemental Paid Sick Leave.

In addition, employers may credit hours of paid leave, excluding regular paid sick leave, the employer-provided to employees on or after January 1, 2021, for absences taken for any of the qualifying reasons delineated. Therefore, covered employers who voluntarily continued to provide benefits under the FFCRA beyond December 31, 2020, may be able to credit such leave taken against the California COVID-19 Supplemental Paid Sick Leave.

Posting, Record-Keeping and Paycheck Stubs

Employers are required to display a poster in the workplace including information related to COVID-19 Supplemental Paid Sick Leave. The Labor Commissioner has prepared a model notice that employers can use for this purpose. Employers must mail or email a copy of the notice to employees who do not frequent a workplace.

The employees’ balance of available COVID-19 Supplemental Paid Sick Leave also must be reflected on itemized wage statements and set forth separately from regular paid sick days. For employees that have variable part-time schedules, and therefore variable leave entitlements, an employer satisfies the wage statement obligation by providing an initial calculation of leave available and indicating "(variable)" next to that calculation on the initial and subsequent wage statements. This will prevent employers from having to make this complicated calculation each pay period. However, an employer must update this calculation on the wage statement when an employee requests to use COVID-19 Supplemental Paid Sick Leave or requests their payroll records under Labor Code Section 247.5.

Records of accrued and used COVID-19 Supplemental Paid Sick Leave, as well as regular paid sick days must be kept for three years.