California's Statewide COVID-19 Supplemental Paid Sick Leave Is Back

Gov. Gavin Newsom has signed SB 95, which resurrects the statewide COVID-19 supplemental paid sick leave requirement that expired at the end of 2020. The bill takes effect immediately but provides a 10-day grace period for employers to start providing sick leave. The new law also applies retroactively to Jan. 1 and will remain in effect until Sept. 30.

Covered Employers and Employees

The new law applies to employers in the state of California with more than 25 employees. Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave. There is no length of service requirement for the leave entitlement provided under the new law.

Reasons for Leave

Employees are entitled to leave for the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID-19.
• 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 COVID-19.
• The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.
• The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis.
• The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine.
• 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.

Amount of Leave

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. "Full time" is defined as either an employee who is classified as full-time by the employer or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the date on which leave is taken.

If an employee is not classified as full time, the employee's schedule and length of employment will determine the amount of their leave entitlement as follows:

• An employee with a regular schedule is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks.
• An employee with a variable schedule is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the leave.
• An employee with a variable schedule who has worked for the employer for 14 days or less is entitled to the total number of hours the employee has worked for the employer.

The rate of pay for the leave for nonexempt employees shall be calculated by the highest of the following:

• The employee's regular rate of pay for the workweek in which the employee uses the leave.
• A formula dividing the covered employee's total wages (not including overtime) by the employee's total hours worked in the full pay period for the prior 90 days of employment.
• The state minimum wage.
• The local minimum wage to which the employee is entitled.

For exempt employees, the leave will be paid at the rate that the employer calculates wages for other forms of paid leave time. The amount paid for supplemental paid sick leave is capped at $511 per day and $5,110 in aggregate.

Due to the retroactive effect of the legislation, employers will need to consider retroactive payments for leave. Any retroactive payment of leave must be paid on or before the payday for the next full pay period after the oral or written request of the employee.

Employers who provided supplemental paid sick leave on or after Jan. 1 (or April 1 if the employee qualifies as a home health care provider) under local COVID-19 sick leave ordinances or a COVID-19 specific employer policy may be able to count such hours towards satisfaction of the requirements under this new legislation.

Notice Requirement

Employers will need to provide employees with notice of this new law. The new law states the Labor Commissioner's office will release a model notice within seven days of the passing of the bill.  Employers will also need to provide employees (other than home health care providers) with written notice of available leave balances. For employees who work a variable schedule, this leave balance notice can be satisfied by performing an initial calculation of hours and indicating "(variable)" next to that calculation.

Cepideh Roufougar is an attorney with Jackson Lewis in San Francisco. © 2021 Jackson Lewis. All rights reserved. Reposted with permission.