California Enacts and Expands COVID-19 Supplemental Paid Sick Leave

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On March 19, 2021, California Governor Gavin Newsom signed Senate Bill (SB) No. 95, renewing and expanding the state’s COVID-19 Supplemental Paid Sick Leave, following the expiration of the federal Families First Coronavirus Response Act (FFCRA) and the 2020 California Supplemental Paid Sick Leave laws which expired on December 31, 2020. SB 95 also added sections 248.2 and 248.3 to the California Labor Code.

The requirement to provide 2021 COVID-19 Supplemental Paid Sick Leave takes effect on March 29, 2021 and sunsets on September 30, 2021. If the law expires while a covered employee is taking this leave, the employee can finish taking the amount of 2021 COVID-19 Supplemental Paid Sick Leave they are entitled to receive. This new law also has retroactive effect, applying to covered employees who took qualifying leave between January 1, 2021 and March 28, 2021.

2021 COVID-19 Supplemental Paid Sick Leave applies to covered employees in the public or private sector, working for employers with over 25 employees as defined by Labor Code section 245.5. 2021 COVID-19 Supplemental Paid Sick Leave does not apply to independent contractors. The new law covers far more employers than those covered by the 2020 California Supplemental Paid Sick Leave laws (Labor Code section 248.1), the latter of which only applied to employers and hiring entities with 500 or more employees. The new law also gives more latitude to covered employees by allowing leave to care for family members, which the 2020 California Supplemental Paid Sick Leave laws did not.

In order for a covered employee to take 2021 COVID-19 Supplemental Paid Sick Leave, the employee must be unable to work or telework due to any one of the following reasons:

  • Quarantine/Isolation: The covered employee is subject to a quarantine or isolation period related to COVID-19, or has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • Caring for a Family Member: The covered employee is caring for a family member (as defined under Labor Code section 245.5(c), including a child (regardless of age or dependency status), parent, stepparent, foster parent, legal guardian, spouse, registered domestic partner, grandparent, grandchild or sibling) who is either subject to a quarantine or isolation period related to COVID-19, has been advised by a healthcare provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to a COVID-19 outbreak on the premises.
  • Vaccine-Related: The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms.

Covered employees who are considered full-time are entitled to 80 hours of 2021 COVID-19 Supplemental Paid Sick Leave. Part-time covered employees with a regular weekly schedule are entitled to the total number of hours the employee is normally scheduled to work over two weeks. Part-time covered employees with variable schedules are entitled to 14 times the average number of hours worked per day over the past 6 months. Covered employees working a variable number of hours and employed over a period of 14 days or less are entitled to the total number of hours the employee worked for that employer. Regardless, employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for 2021 COVID-19 Supplemental Paid Sick Leave taken by the covered employee, unless otherwise expanded by federal law. However, the covered employee may utilize other paid leave that may be available in order to receive what they would normally earn if the cap is reached.

Non-exempt covered employees must be paid the highest of the following for each hour of 2021 COVID-19 Supplemental Paid Sick Leave the covered employee is entitled to receive:

  • The employee’s regular rate of pay for the work week in which the leave is taken.
  • A rate calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
  • The state minimum wage.
  • The local minimum wage.

2021 COVID-19 Supplemental Paid Sick Leave for exempt covered employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Employers are required to make 2021 COVID-19 Supplemental Paid Sick Leave available to covered employees immediately upon oral or written request. The leave is not conditioned on medical certification nor can employers require covered employees to use state disability insurance before or in lieu of 2021 COVID-19 Supplemental Paid Sick Leave. Covered employees exercising their rights to 2021 COVID-19 Supplemental Paid Sick Leave are protected from retaliation by employers under Labor Code section 246.5(c).

The requirement to provide retroactive 2021 COVID-19 Supplemental Paid Sick Leave is triggered if the covered employee makes an oral or written request after March 29, 2021 to be paid for prior leave taken that qualifies under the new law. Employers then have until the payday for the next full pay period to pay the retroactive 2021 COVID-19 Supplemental Paid Sick Leave to the covered employee.

Employers may receive a credit if they voluntarily provided a covered employee with other COVID-19 related paid sick leave between January 1, 2021 and March 28, 2021, provided that the leave taken by the covered employee and payments made by the employer were in accordance with the requirements entitling the covered employee to 2021 COVID-19 Supplemental Paid Sick Leave. The other COVID-19 related sick leave previously paid by the employer must have been at a rate equal to or greater than what is required under the 2021 COVID-19 Supplemental Paid Sick Leave. If not, the employer may make a retroactive payment to make up the difference between what was paid and what is required under 2021 COVID-19 Supplemental Paid Sick Leave. Additionally, the number of hours of leave corresponding to the amount of the retroactive payment counts towards the total number of hours of 2021 COVID-19 Supplemental Paid Sick Leave that the employer is required to provide to the covered employee.

With regard to recordkeeping, employers are required to list 2021 COVID-19 Supplemental Paid Sick Leave separately from regular Paid Sick Leave on itemized wage statements, in order to ensure that covered employees understand the number of hours available to them for 2021 COVID-19 Supplemental Paid Sick Leave. This wage statement requirement becomes enforceable on the next full pay period after March 29, 2021. The wage statement in which retroactive 2021 COVID-19 Supplemental Paid Sick Leave was paid must also include notice as to how many 2021 COVID-19 Supplemental Paid Sick Leave hours remain available to the covered employee. Additionally, Labor Code section 247.5 requires employers to keep records for a three-year period on regular paid sick days and 2021 COVID-19 Supplemental Paid Sick days accrued and used, and that the records be made available to the Labor Commissioner or employee upon request.

The California Labor Commissioner’s Office recently issued a new required notice for covered employers to conspicuously post at the workplace and/or electronically distribute to employees not frequenting the workplace. The notice must be posted and/or distributed before March 29, 2021.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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