California Gov. Gavin Newsom signed SB 95 on March 19, 2021, expanding and resetting COVID-19-related supplemental paid sick leave in the Golden State. This bill provides COVID-19-related supplemental sick leave to those who are unable to work or telework due to COVID-19, and applies to employers with more than 25 employees. The sick leave requirements apply retroactively to January 1, 2021, and apply until September 30, 2021. The law goes into effect on March 29, 2021.
Of particular note, the new law requires COVID-19 supplemental sick leave in addition to that under the previous 2020 CA COVID-19 supplemental sick leave (AB 1867) and FFCRA—it resets the supplemental sick leave bank.
Under the law, an employer must provide 80 hours of COVID-19 supplemental sick leave for employees that are full time (or considered to be full time), or if the employee was scheduled to work at least 40 hours per week for the two weeks preceding the sick leave. If the employee works a part-time regular schedule, the employee is entitled to COVID-19 supplemental sick leave in the amount of hours normally worked over two weeks. If the employee works a variable number of hours each week, the number of hours is calculated based on how long the employee has worked for the employer. The leave is in addition to any paid sick leave regularly available to the employee. Like with regular sick leave, the employer must provide written notice to employees of the amount of COVID-19 supplemental sick leave they have available for use, but can mark “(variable)” next to the amount of leave in the initial calculation for employees whose leave is subject to a calculation.
Importantly, an employer cannot require an employee to use other paid or unpaid leave, paid time off, or vacation time before or in lieu of using the COVID-19 supplemental paid sick leave. But an employer can require employees to exhaust their COVID-19 supplemental sick leave if they are excluded from the workplace due to COVID-19 exposure per the Cal/OSHA ETS. The employer may also count paid leave an employee took due to COVID-19 from January 1 to the present toward the supplemental sick leave hours. If the employee took unpaid leave due to COVID-19 from January 1 to the present, the employee may request retroactive compensation, and that time will count toward the supplemental sick leave.
The employee can take the leave for the following reasons:
An employer cannot deny supplemental sick leave solely for lack of medical certification, but can ask for documentation if the employer has other information the employee is not using the leave for a valid purpose.
Compensation for this leave is the highest of the employee’s regular rate of pay for the pay period in which the leave is taken; total wages (not including premium pay) divided by the total hours worked in the prior 90 days; the California minimum wage; or the local minimum wage. The maximum an employer must pay is $511 per day and $5,110 in the aggregate (unless federal legislation increases the amounts in an FFCRA-like bill).
The labor commissioner has created a model notice regarding COVID-19 supplemental paid sick leave.
California employers who have questions about compliance with their sick leave obligations should consult with trusted employment counsel immediately. Employers with operations outside of California should be on the alert for similar legislation in other states, particularly given the uncertainty of additional federal action.