New California Law Updates Supplemental Paid Sick Leave Provisions for COVID-Related Absences
Introduction
On March 19, 2021, Governor Newsom signed SB 95 into law. The law requires public and private employers with more than 25 employees to provide supplemental paid sick leave for absences related to COVID-19. The law provides slightly broader qualifying reasons for taking COVID-19 leave than similar statewide 2020 supplemental paid sick leave provisions, so employers with policies in place based on the prior California supplemental paid sick leave laws should adjust those policies accordingly.
Eligibility
- Obtaining a medical diagnosis if experiencing symptoms of COVID-19
- Self-isolation or quarantine period related to COVID-19
- Caring for a family member who is subject to a COVID-19 quarantine or isolation period
- Caring for a child whose school or place of care is closed due to COVID-19 on the premises
- Attending a COVID-19 vaccine appointment
- Experiencing vaccine-related symptoms.
A covered employee can take leave under the new law if they are unable to work or telework for any of the following reasons:
Amount of Leave
Full-time employees are entitled to 80 hours of leave.
Part-time employees with a regular weekly schedule are entitled to the number of hours the employee is normally scheduled to work over two weeks.
Part-time employees with variable schedules are entitled to 14 times the average number of hours worked per day over the last six months.
Rate of Pay
Non-exempt employees should be paid at the highest of the following:
- Their regular rate of pay
- State minimum wage
- Local minimum wage
- Average hourly pay for the preceding 90 days (excluding overtime)
Exempt employees should be paid at the same rate of pay as wages calculated for other paid leave time.
Paid leave is capped at $511 per day, or $5,100 in the aggregate.
Retroactive Effect
The law applies retroactively to January 1, 2021 and is effective through September 30, 2021. If an employee took leave between January 1, 2021 and March 29, 2021 for a qualifying reason and was not paid for those hours, the employee can request payment.
» Retroactive payments must be paid on or before the payday for the next full period after the employee makes the request.
Offset
Employers may not use supplemental paid sick leave provided under the 2020 COVID-19 supplemental paid sick leave law to offset leave required by the new law. However, if an employer provides another supplemental benefit for leave taken on or after January 1, 2021 that is payable for one of the reasons set forth in the law and compensates the employee in an amount equal or greater to the amount required by the law, the employer may count those hours towards the supplemental paid sick leave requirement.
Employers may not require employees to take any other paid or unpaid leave before or in lieu of using the covered employees' supplemental paid sick leave.
Notice and Paystub Requirements
Employers are required to display the notice issued by the California Department of Industrial Relations regarding supplemental paid sick leave where employees can easily read it or, if employees do not frequent a physical workplace, send it to employees electronically. The notice can be found here.
As with the 2020 paid sick leave law, employers are required to display employees' available supplemental paid sick leave on paystubs separately from other forms of paid leave. Employers must keep records regarding supplemental paid sick days accrued and/or used by employees for three years.
© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.
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