On March 19, 2021, Governor Gavin Newsom signed into law SB 95, thereby expanding California’s COVID supplemental paid sick leave provisions (“COVID leave”).
California’s prior supplemental paid sick leave requirements (which flowed initially from the governor’s executive action, and then from AB 1867) expired on Dec. 31, 2020. SB 95, which extends and expands those prior protections, applies retroactively to Jan. 1, 2021. The leave requirements will run through Sept. 30, 2021, with the exception that if an employee is on COVID leave at the time the law expires, the employee will be entitled to the full amount of leave required, even if the leave extends beyond the expiration of the law. Below are the key elements of the new law that employers should be aware of.
A Broader Definition of Employer
AB 1867 only applied to California employers with 500 or more employees. SB 95 significantly expands the number of employers subject to leave requirements, as it applies to all employers with more than 25 employees.
A Broader Definition of Covered Employee
SB 95 includes a broader definition of “covered employee” than existed under prior law. Specifically, a “covered” employee” is any employee who is unable to work or telework because they: (a) are subject to a quarantine or isolation period under state, federal or local law; (b) have been advised to self-quarantine by a healthcare provider; (c) are attending a COVID vaccination appointment; (d) are experiencing COVID symptoms related to the COVID vaccine; (e) are experiencing COVID symptoms and seeking a diagnosis; (f) are caring for a family member who is self-quarantining; or (g) are caring for a child whose school or daycare is closed because of COVID.
Required Amounts of Leave
Covered employees who are full-time, or who are scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the beginning of the leave, are entitled to 80 hours of COVID leave.
Employees who do not meet that criteria are entitled to fewer hours of leave. Specifically: (a) an employee who works a normal weekly schedule is entitled to leave in the amount of the total number of hours the employee is normally scheduled to work over the course of two weeks; (b) an employee who works a variable number of hours is entitled to leave in the amount of 14 times the average number of hours the employee worked each day for the employer in the six months preceding the beginning of COVID leave (or over the entire period of the employee’s employment if less than six months); and (c) an employee who works a variable number of hours but has worked for the employer for 14 days or fewer is entitled to leave in the amount of the number of hours the employee has worked for the employer.
SB 95 specifies that the leave it requires is in addition to any paid sick leave the employee is otherwise entitled to; and that employers may not require employees to use other paid or unpaid leave, paid time off, or vacation time in lieu of, or before COVID leave.
The Rate at Which Leave Must Be Paid
Nonexempt employees’ COVID leave must be paid at the the higher of the following three hourly rates: (a) calculated in the same manner as the regular rate of pay for the workweek in which the employee uses COVID leave, regardless of whether the employee actually works overtime in that week; (b) calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in full pay periods of the prior 90 days of employment; or (c) the minimum wage applicable to the employee.
NOTE: Employers should document having performed these calculations to ensure they are able to demonstrate that the proper rate is being paid to employees taking COVID leave, and because the calculations must be provided to an employee upon request.
For exempt employee, the COVID leave rate must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
Notwithstanding the rates above, the total amounts of leave that must be paid are capped at $511 per day, and $5,110 total. These caps will remain in effect unless and until federal law establishes higher caps, in which case the federal caps shall apply.
All COVID leave payments must be identified specifically as such on wage statements, separate from regular paid sick leave.
The requirements laid out in SB 95 officially take effect on March 29, 2021, but they also apply retroactively to Jan. 1, 2021. This means that an employee who took leave since January 1, 2021 to have that leave be paid and designated as COVID leave. Accordingly, an employee who took unpaid leave (or leave paid at a rate less than what SB 95 requires) during this period that would have qualified for COVID leave under SB 95 is entitled—upon the employee’s oral or written request—to be paid retroactively for that leave. Any such retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request of the employee, and should be specifically documented and reflected as a retroactive payment for COVID leave on the employee’s wage statement.
Employers are required to provide employees notice of their rights to COVID leave. The method for providing this notice will be a model notice that the Labor Commissioner’s Office has been tasked with publishing no later than March 26, 2021. Employers should be on the lookout for that notice, which should be posted in areas in which such notices are regularly posted, and also distributed electronically to any employees not regularly at the workplace in person.
Special Provisions for In-Home Supportive Services and Firefighters
For in-home services providers, the COVID leave entitlements included in SB 95 are “in addition to any unused sick leave benefits put in place by the federal Family First Coronavirus Response Act, which a provider may still use until March 31, 2021.” The new law also includes unique rules for firefighters in regards to calculating their leave entitlements based on their variable schedules.