On March 19, 2021, California Governor Gavin Newsom signed SB 95 into law, requiring many employers to provide employees with two paid weeks of supplemental COVID-19 sick and vaccination leave for 2021. SB 95 went into effect on March 29, 2021. The new law covers a broad range of employers, as it applies to employers with 26 or more employees. The prior supplemental paid leave law that expired on December 31, 2020, applied to employers with 500 or more employees. Further, the law applies retroactively to leave taken starting January 1, 2021, and is effective through September 30, 2021. Because the new law applies retroactively, employers must take immediate action to ensure compliance.
SB 95 created new Labor Code section 248.2, which mandates that employers provide covered employees who are unable to work or telework for reasons related to COVID-19 with supplemental paid sick leave. This law entitles full-time employees to an additional 80 hours of supplemental paid sick leave. Employers cannot require a covered employee to use any other available paid or unpaid leave prior to using the supplemental leave provided by SB 95. However, employees do have the right to choose whether they want to use supplemental paid sick leave or some other paid or unpaid leave benefit that either the employer provides or the law requires.
The reasons for which an employee may use supplemental paid sick leave are expanded from the prior version of the law as well. Employees who are unable to work or telework can use supplemental paid sick leave for the following reasons:
- Employee is subject to quarantine or isolation period related to COVID-19 as defined by federal, state, or local orders or guidelines.
- Employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- Employee is attending an appointment to receive a COVID-19 vaccine.
- Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
- Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
- Employee is caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19.
- Employee is caring for a child whose school or place of care is closed or otherwise unavailable on the premises for reasons related to COVID-19.
This law entitles full time employees to 80 hours of supplemental paid sick leave. An employee is considered full time if the employee is classified as full-time by the employer or the employee was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date on which leave is taken.
For employees not considered full time under the law, the employee’s schedule and length of employment determine the amount of supplemental paid sick leave the employee is entitled to as follows: (1) an employee with a normal weekly schedule is entitled to the total number of hours the employee is scheduled to work for the employer over two weeks; (2) an employee with a variable number of hours scheduled to work 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; and (3) an employee with a variable schedule who has worked for the employer for less than 14 days is entitled to the total number of hours the employee has worked for the employer.
Because the new law applies retroactively, employers will need to consider retroactive payments for leave or work missed by employees for COVID-related reasons from January 1 to the present. Any retroactive payment to an employee must be paid on or before the payday for the next full pay period after the oral or written request of the employee. The rate of pay employees are entitled to is the highest of the following: (1) the employee’s regular rate of pay for the last pay period; (2) the State minimum wage; or (3) the local minimum wage. Employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee who has requested supplemental paid sick leave.
The new law requires employers to conspicuously display a required poster in the workplace to provide notice of this new law to employees. If employees are working remotely, the employer must disseminate the poster through e-mail or other electronic means. The poster can be found here: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf.
This new law is currently in effect. Employers are encouraged to review the new law and examine their practices, polices, and payroll records to determine compliance. Please do not hesitate to contact NavBat to discuss the steps you can take to maintain compliance with this new law.