On March 19, 2021, California Governor Gavin Newsom signed Senate Bill 95 providing a new form of COVID-19 related paid sick leave for many California workers. The law will become effective on March 29, 2021, and applies retroactively to sick leave taken beginning on or after January 1, 2021. All California employers with more than 25 employees and in-home supportive services providers are required to provide the supplemental sick leave benefits to employees. The law will remain in effect through September 30, 2021.

SB 95 provides for COVID-19 supplemental paid sick leave for covered employees who are unable to work or telework due to certain reasons related to COVID-19. Qualifying reasons for employees to use this paid sick leave include: the employee is subject to a COVID-19 quarantine/isolation period required by local, state or federal order or guideline (the longest minimum period will apply); 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 COVID-19 vaccination; 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 is subject to a quarantine/isolation order or guideline or who has been advised to self-quarantine; and the employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Under the law, a covered employee is entitled to 80 hours of COVID-19 supplemental paid sick leave if that employee either works full-time or was scheduled to work, on average, at least 40 hours per week for the employer in the 2 weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave. For others who work part-time hours, if the employee has a normal weekly schedule, the employee is entitled to leave up to the total number of hours the employee is normally scheduled to work for the employer over two weeks. If the employee works a variable number of hours, the employee is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation is to be based on the entire period the employee has worked for the employer. If the employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the employee will be entitled to leave based on the total number of hours the employee has worked for the employer. The covered employee determines how many and when to use his or her available COVID-19 supplemental paid sick leave.

Covered employers must take immediate steps to adjust wage statements. Specifically, wage statements must list any supplemental paid sick leave payment as a separate line item and list all available supplemental paid sick leave hours separate from other paid leave. Excluding regular sick leave, most employers may credit any supplemental paid sick leave hours provided to an employee since January 1, 2021, for the same purposes, such as hours taken under the federal Families First Coronavirus Response Act. However, in-home supportive service providers may not credit FFCRA hours. In addition to the wage statements, covered employers must post a supplemental paid sick leave notice and send notice to workers not frequenting a workplace. A notice is scheduled to be available from the Labor Commissioner by March 26, 2021.

For any leave taken on or after January 1, 2021, for which SB 95 would now apply and which was unpaid or paid at an amount that did not meet the new requirements, the employee must request retroactive payment orally or in writing. Payment in response to such a request is due on or before the payday for the next full pay period after the request was made.

Employees not exempt from overtime requirements must be paid for their use of supplemental paid sick leave at the higher of: the employee’s regular rate of pay for the workweek in which COVID-19 supplemental paid sick leave was taken; the employee’s total wages, not including overtime premium pay, divided by the employee’s total hours worked in the full pay periods of the prior 90 days of employment; the California minimum wage; or the local minimum wage. Employees exempt from overtime requirements must be paid for supplemental paid sick leave in the same way as the employer calculates wages for other forms of paid leave time for these employees. Supplemental paid sick leave benefits are capped at $511 per day and $5,110 in the aggregate for each employee, unless there is a federal increase in these previously established FFCRA limits.

All businesses with more than 25 employees are subject to the law, which is a significant expansion of prior COVID-19 sick leave legislation. Small businesses employing 25 or fewer workers are exempt from the legislation but are entitled to a federal tax credit if they do offer supplemental sick leave.