On March 19, 2021, California Governor Gavin Newsom signed into law Senate Bill 95, which ensure access to up to 80 hours of COVID-19 supplemental paid sick leave for eligible employees, including those advised to quarantine or isolate, to get or recover from a vaccine, and those caring for COVID-impacted family members until September 30, 2021. SB 95 extends protections through September 30, 2021 and is retroactive to sick leave taken beginning January 1, 2021. Small businesses employing 25 or fewer workers are exempt from the legislation, but may offer supplemental paid sick leave and, if eligible, receive a federal tax credit. That means that this applies to all California employers with 25 or more employees, and takes effect on March 29, 2021.
Under the bill, workers can take time off for any of the following reasons:
Self-quarantine or self-isolation;
Appointments for a COVID vaccine, as well as dealing with its potential side effects;
Dealing with symptoms of COVID-19;
Caring for a family member in self-quarantine or self-isolation; and
Caring for a child whose school or place of care is unavailable because of COVID-19 on the premises.
The bill is retroactive to Jan. 1, meaning employers may have to pay workers for any time they took off unpaid for the reasons listed above. COVID-19 supplemental paid sick leave shall be set forth separately from paid sick days.
Previously, the COVID-19 supplemental paid sick leave covered workers, including certain persons employed by private businesses of 500 or more employees, or persons employed as certain types of health care providers or emergency responders by public or private entities, until December 31, 2020.
SB 95 provides COVID-19 supplemental paid sick leave for covered employees, who are unable to work or telework due to certain reasons related to COVID-19, including that the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. The bill provides a covered employee to 80 hours of COVID-19 supplemental paid sick leave if that employee either works full time or was scheduled to work, on average, at least 40 hours per week for the employer in the 2 weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave.
The bill provides a different calculation for supplemental paid sick leave for a covered employee who is a firefighter subject to certain work schedule requirements and for a covered employee working fewer or variable hours, as specified.
The bill would prohibit an employer from requiring a covered employee to use other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before that employee uses COVID-19 supplemental paid leave or in lieu thereof, except in certain circumstances in which the employer provides another supplemental benefit for leave for COVID-19.
In addition, the bill provides that the total number of hours of COVID-19 supplemental paid sick leave to which a covered employee is entitled to under these provisions is in addition to any paid sick leave available under the act, as specified.
Employers: watch out for penalties for non-compliance with this new law! This bill appropriates $100,000 from the General Fund to the Labor Commissioner for staffing resources to implement and enforce these provisions.
The requirement to provide COVID-19 supplemental paid sick leave as set forth in this section applies retroactively back to January 1, 2021. Any such retroactive payment, the number of hours of leave corresponding to the amount of the retroactive payment shall count towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide to the covered employee. This retroactive payment shall be paid on or before the payday for the next full pay period after the oral or written request of the covered employee. The retroactive payment shall be reflected on paystubs for the corresponding pay period.
An employer shall not be required to pay more than five hundred eleven dollars ($511) per day, and five thousand one hundred ten dollars ($5,110) in the aggregate to a covered employee for COVID-19 supplemental paid sick leave taken by the covered employee, unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (Public Law 116-127).
Notice to Employees and Paystubs
Employers should provide notice to employees by placing a poster in the workplace or providing a copy electronically to telecommuting/telework employees. By March 26, 2021, the Labor Commissioner shall make publicly available a model notice for purposes of Section 247. Only for purposes of COVID-19 supplemental paid sick leave, if an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement of subdivision (a) of Section 247 by disseminating notice through electronic means, such as by electronic mail.
Evidence of hours used for this purpose should be reflected on the employee’s pay stub under a separate line item. Advise your payroll company to be sure to reflect “COVID-19 SPSL” on employee paystubs, and to account for this additional type of leave.
Interplay with FFCRA
The COVID-19 supplemental paid sick leave provided under this section is in addition to any unused sick leave benefits put in place by the federal Family First Coronavirus Response Act (Public Law 116-127), which a provider may still use until March 31, 2021.
DO YOU NEED HELP DRAFTING WORKPLACE POLICIES AND CREATING COVID-19 PROCEDURES?
The Grady Firm attorneys provide the following employment law services:
Assistance with interpreting emergency COVID-19 legislation as it affects your business;
Counsel employers on staff changes and draft Notices of Reduced Hours, Furloughs, or Layoffs;
Draft Severance Agreements;
Act as I-9 agent and I-9 audit preparation or defense;
Employee v. independent contractor classification analysis;
Assistance with converting independent contractors to employees;
On-site, classroom-style Sexual Harassment training for employees and supervisors;
“Experiential” supervisor training in which managerial employees practice processing a harassment complaint and commencing an investigation in pairs with other trainees.
Draft and review Employee Handbooks, arbitration agreements, and Anti-Harassment policies;
Employee personnel file audits;
Litigation/labor claim defense.