California Senate Bill 95

Senate Bill 95, signed late last week by California Gov. Gavin Newsom, requires employers to provide up to 80 hours of supplemental paid sick leave to employees who cannot work or telework due to certain reasons related to COVID-19. This new leave requirement applies to public and private employers with more than 25 employees and establishes a new bank of COVID-19-related sick leave, beginning retroactively on Jan. 1, 2021 through Sept. 30, 2021. A covered employer is required to provide supplemental paid sick leave to an employee who is unable to work or telework for any of the following reasons:

• 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 federal Centers for Disease Control and Prevention or a local health officer who has jurisdiction over the workplace.
• The employee has been advised by a health care provider to self-quarantine 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 the employee from being able to work or telework.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for a family member, as defined in subdivision (c) of Section 245.5, who is subject to an order or guidelines described in the first bullet above or who has been advised to self-quarantine, as described in the second bullet point.
• The employee is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

These reasons for leave essentially mirror the reasons for leave under the federal Families First Coronavirus Response Act, with the addition of the entitlement to paid leave when getting a vaccination or when experiencing symptoms due to the vaccine.

Employees with regular schedules are entitled to the number of hours they are normally assigned to work in a two-week period. For full-time employees, that means 80 hours. Employees with variable hours are entitled to 14 times the average number of hours the employee works each day in the 6 months before the leave (or a shorter period if they have not worked for 6 months.) There is also a specific provision addressing leave for firefighters: those who were scheduled to work more than 80 hours in the two weeks before the leave are entitled to leave equal to the total number of hours that they were scheduled to work in those two preceding weeks. However the maximum pay benefit is subject to the caps below.

This sick leave entitlement is in addition to any other state-mandated sick leave. Also, like the FFCRA, payment is capped at $511 a day or $5,110 total, unless that amount is subsequently increased by federal legislation. The rate to be paid to employees is also similar to that under the FFCRA; the rate is the highest of: the regular rate in the week leave was taken, the regular rate over the prior 90 days, the state minimum wage or the local minimum wage.

Employers are required to begin paying the sick leave by March 29. Because it is retroactive to Jan. 1, employers, upon request, are required to pay employees for time they took off from Jan. 1 that would have qualified. Importantly for employers that voluntarily extended paid FFCRA leave (or created a similar benefit) after Jan. 1, the law permits that paid time to be counted against this new supplemental sick leave entitlement. We recommend employers go back and calculate those credits against the new leave entitlement. This issue may need to be negotiated if the extension of leave was bargained with unions. In addition, employers cannot require medical certification as a condition of providing this leave, but we recommend requiring employees to self-certify the need for leave to support a tax credit (if eligible) or any possible reimbursements from the federal government.

Employers are required to provide notice to employees of the new leave entitlement, which must be posted in the workplace or, for any remote workers, sent electronically. The Labor Commissioner has developed a model notice available here. Another important new obligation for employers is the requirement that the supplemental sick leave balance be listed on employees’ pay stubs, like other sick leave, but separately. For variable hour employees, the hours can be calculated and then state “variable” next to the estimated entitlement. The Labor Commissioner has also developed a helpful FAQ available here.

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