On March 19, 2021, Gov. Gavin Newsom signed Senate Bill (SB) 95, which provides covered employees with up to 80 hours of COVID-19 supplemental paid sick leave. The new legislation is different from the Families First Coronavirus Response Act (FFCRA) and the California COVID-19 supplemental paid sick leave statute that expired on Dec. 31, 2020, because it covers more employers and requires paid sick leave for an expanded list of qualifying COVID-19-related reasons, including vaccination.

The new law goes into effect on March 29, 2021. To ensure compliance, California employers should be aware of the law’s expansive coverage, new qualifying reasons for paid sick leave and its retroactive application.

Covered Employers

In an apparent effort to include employees previously covered by the FFCRA, which applied to employers with fewer than 500 employees, and California’s previous COVID-19 supplemental paid sick leave law, which applied to employers with more than 500 employees, the new law covers all employers with more than 25 employees.

Qualifying Reasons

The law requires covered employers to pay COVID-19 supplemental paid sick leave to employees who are unable to work or telework because the employee:

• 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;
• Is advised by a health care provider to self-quarantine or isolate due to COVID-19-related concerns;
• Is attending an appointment to receive a COVID-19 vaccine;
• Is experiencing symptoms related to a COVID-19 vaccine;
• Is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• Is caring for a family member (minor or adult child, parent, spouse, domestic partner, grandparent, grandchild or sibling) who is subject to a quarantine or isolation period, or who has been advised to self-quarantine; or
• Is caring for a child (regardless of age) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

The limitation on who qualifies for leave based on whether they are “unable to work or telework” is not clear. As such, we caution employers to seek legal advice before denying a request for COVID-19 supplemental sick pay.

Amount of Paid Sick Leave

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. Non-full-time employees who have a normal weekly schedule are entitled to their total number of hours they are normally scheduled to work over two weeks. Employees with a variable schedule receive 14 times the average number of daily hours worked in the six months preceding the COVID-19 supplemental paid sick leave.

The law caps COVID-19 supplemental paid sick leave wages at $511 per day and $5,110 in the aggregate for each covered employee and provides detailed guidance for how employers are to calculate each hour of paid sick leave for exempt and nonexempt employees.

Supplemental Paid Sick Leave Is in Addition to Other Paid Sick Leave

The COVID-19 supplemental paid sick leave is in addition to any paid sick leave that an employer provides, including under California Labor Code Section 246 (the Healthy Workplaces, Healthy Families Act of 2014).

Employers may require employees to first exhaust their COVID-19 supplemental paid sick leave before paying employees exclusion pay required under the California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS). However, employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before they use their COVID-19 supplemental paid sick leave.

Employers who, in addition to regular paid sick leave, already provided COVID-19-specific supplemental paid sick leave for absences taken since Jan. 1, 2021, for the same reasons as those covered in SB 95 may count those hours toward the leave obligation created by SB 95.

Effective Time Period/Retroactivity

The law goes into effect on March 29, 2021, is retroactive to Jan. 1, 2021, and expires on Sept. 30, 2021. Thus, upon the employee’s oral or written request, an employer must pay the employee for any unpaid qualifying leave taken since Jan. 1, 2021. The payment must be made on or before the next full pay period following the request.

Paystub Requirements

Notably, the employee’s available COVID-19 sick leave hours must be reflected on the employee’s wage statement or in a separate writing. The available COVID-19 sick leave hours must be listed separately from other available paid sick leave or paid time off. This wage statement requirement becomes enforceable on the next full pay period after March 29, 2021.

In-Home Supportive Services Providers and Firefighters

SB 95 also contains specific provisions regarding the number of hours of Covid-19 sick leave available to firefighters and In-Home Supportive Services (IHSS) providers. IHSS providers and employers that employ or retain firefighters should evaluate these additional provisions carefully.

Notice Requirement

Employers must provide employees with notice of their rights under SB 95 within seven days of the statute’s enactment. The California Labor Commissioner is to make a model notice publicly available for employers to display as a poster in the workplace or to disseminate through electronic means, such as email, if an employer’s employees do not frequent the workplace.