California has enacted legislation (Senate Bill 95) that requires employers with more than 25 employees to provide COVID-19 supplemental paid sick leave to employees. The leave requirement applies retroactively to January 1, 2021 and will remain in effect through September 30, 2021.
Use of Leave:
Covered employers must provide paid leave if an employee is unable to work or telework due to any of the following reasons:
- The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace.
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
- The employee is attending an appointment to receive a COVID-19 vaccine.
- 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 who is subject to a quarantine, isolation, or self-quarantine order.
- 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 family member includes a spouse, registered domestic partner, parent (including parent of a spouse or domestic partner), grandparent, child (regardless of age or dependency), grandchild, and sibling.
Amount of Leave:
Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they satisfy either of the following criteria:
- The employer considers the covered employee to work full time.
- The covered employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date they took COVID-19 supplemental paid sick leave.
An employee who doesn't meet either of the above criteria is entitled to the leave as follows:
- If they work a normal weekly schedule, they're entitled to the total number of hours they are normally scheduled to work for the employer over two weeks.
- If they work a variable number of hours, they are entitled to 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave.
The COVID-19 supplemental paid sick leave is in addition to any leave to which they are entitled under the state's paid sick leave law (Labor Code Section 246)
The employer must make COVID-19 supplemental paid sick leave available for employees to use immediately. Employees are entitled to use their full amount of leave as long as they start the leave on or before September 30, 2021.
Pay During Leave:
Each hour of COVID-19 supplemental paid sick leave must be compensated at:
- For nonexempt employees, by the highest of the following:
- The leave for exempt employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave.
For COVID-19 supplemental paid sick leave, employers aren't required to pay more than $511 per day and $5,110 in the aggregate to an employee.
Employers have until March 29, 2021 to start providing such leave. However, since the law applies retroactively to January 1, 2021, if an employee took qualifying leave from January 1, 2021 through March 28, 2021 and makes a request for retroactive payment, the employer must provide it. The request must be made on or after March 29, 2021. The retroactive payment must be paid on or before the payday for the next full pay period after the request.
The state's existing paid sick leave law requires employers to provide an employee with written notice of the amount of paid sick leave available for use on either the employee's itemized wage statement or in a separate statement provided on the designated pay date with the employee's payment of wages. Under Senate Bill 95, COVID-19 supplemental paid sick leave must be itemized separately from the paid sick leave. Employers will have until the next full pay period after March 29, 2021 to comply with this requirement.
Employers must post a notice about employees' rights under the law. The Labor Commissioner has published a model notice for employers. An employer may satisfy this requirement for workers who don't frequent a workplace by disseminating the notice through electronic means, such as e-mail.
Interaction with Other Leave Laws and Policies:
If an employer pays another supplemental benefit for leave taken on or after January 1, 2021, that is payable for the reasons listed above and that compensates the employee in an amount equal to or greater than required above, the employer may generally count it toward meeting the requirements of Senate Bill 95. This cannot include paid sick leave required under Labor Code Section 246. It also cannot include leave provided under Labor Code Section 248(e) (a now expired COVID-19 leave for food sector employees) or Labor Code Section 248.1(f) (a now expired COVID-19 leave for employees of employers with 500 or more employees), but it may include leave under federal law and local ordinances if the criteria are met. See the text of the law for details.
Generally, an employer cannot require an employee to use other paid or unpaid leave prior to or in lieu of using COVID-19 supplemental paid sick leave. However, an employer may require an employee to exhaust their COVID-19 supplemental paid sick leave prior to taking COVID-19 leave associated with being excluded from the workplace due to COVID-19 exposure under emergency state rules.
There are special rules for in-home supportive services and firefighters under the law. See the text of the law for details.
Covered employers should read the law in full and ensure compliance. Supervisors should also be trained on how to handle requests for the leave. The Labor Commissioner has published answers to frequently asked questions about the new law, which can be found here. Please contact your dedicated service professional with any questions.