California Expands Covid-19 Supplemental Paid Sick Leave

California has passed a new law (SB95) which dramatically expands COVID-19 supplemental paid sick leave.

Prior to the new law, only employers with 500 or more employees were required to provide supplemental paid sick leave for COVID-19, and this requirement expired on December 31, 2020.

Now, the requirement has been reinstated and applies to employers with 25 or more employees. Further, it is effective retroactively to January 1, 2021.

Below are the details of the new law.

Eligible Employees

An employee is eligible for supplemental paid sick leave under the new law if the employee cannot work or telework for any of the following reasons:

• The employee is subject to a quarantine or isolation order from the CDPH, CDC, or local public health official

• The employee has been advised by a healthcare provider to self-quarantine

• The employee is attending an appointment to receive the COVID-19 vaccine

• The employee is experiencing symptoms or side effects from receiving the COVID-19 vaccine

• 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 or isolation order, or who has been advised by a healthcare provider 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

An eligible employee is entitled to up to 80 hours of supplemental paid sick leave, provided that the employee works full time or has worked at least 40 hours per week in the two-week period prior to taking leave.

Eligible part-time employees are entitled to the number of hours that the employee is normally scheduled to work in a given two week period. If the employee’s schedule is variable, the employee is entitled to the approximate two-week wage that the employee would receive.

Rate of Pay

The rate of pay for nonexempt (hourly) employees taking supplemental paid sick leave is the highest of:

1. The employee’s regular rate of pay;

2. The employee’s total wages, not including overtime pay, divided by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;

3. State minimum wage; or

4. Applicable local minimum wage.

The rate of pay for exempt (salaried) employees is the same as for other categories of paid leave.

The maximum amount of supplemental paid sick leave is $511 per day and $5,110 total.

An employer cannot require an eligible employee to take any other type of paid or unpaid leave—including paid vacation or paid sick leave under the employer’s policy—in lieu of supplemental paid sick leave.

However, if the employee is excluded from the workplace pursuant to the Cal/OSHA Emergency Temporary Standards, the employer may require the employee to use supplemental paid sick leave to cover the employee’s “continued earnings” until the employee is able to return.

Other considerations

Because the law applies retroactively, if an employee took unpaid time off between January 1, 2021 and the enactment of the new law, for a reason that would make them eligible for supplemental paid sick leave under the new law, their employer must make a retroactive payment.

• There is an exception if the time off was granted under Labor Code Section 246 or another specified category of time off.

Employers must give their employees notice of their right to COVID-19 supplemental paid sick leave, and must identify COVID supplemental sick leave separately on itemized wage statements (pay stubs).

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