IT’S BACK! MOST CALIFORNIA EMPLOYERS NOW NEED TO PROVIDE SUPPLEMENTAL COVID-19 SICK LEAVE

Written by Jeremy Mittman and Thea Rogers

On March 18, 2021, the California Senate voted to approve Senate Bill 95, thereby extending the previous COVID-19 supplemental paid sick leave law that expired on December 31, 2020. Governor Newsom signed the law into immediate effect on March 19; it applies retroactively to January 1, 2021, the obligation to provide the leave begins on March 29 (ten days after enactment), and is set to expire on September 20, 2021. 

While in many ways similar to the previous California supplemental paid sick leave law, SB 95 also expands employer coverage and the reasons for which employees may use the provided leave. 

Expanded Employer Coverage

Previously, only employers with 500 or more employees were required to provide supplemental paid sick leave. Now, any employer with more than 25 employees is required to comply with the new law.

Additional Reasons for Leave Related to COVID-19

Covered employers under the prior law were required to provide up to 80 hours of paid leave if an employee required to leave home to perform work (i) was subject to an isolation or quarantine order, (ii) was not permitted by the employer to work due to COVID-19 transmission related concerns or (iii) was advised by their healthcare provider to isolate or quarantine.

Under the new law, however, employers must now also provide supplemental paid sick leave if an employee is unable to work or telework for any of the following reasons:

  • the employee is attending a COVID-19 vaccination appointment;
  • experiencing COVID-19 symptoms relating to receiving the vaccine;
  • experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • has been advised by a healthcare provider to self-quarantine due to COVID-19 related concerns;
  • is caring for a family member who is subject to a quarantine or isolation order or guidelines; or
  • is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Key Provisions of the Law Employers Should be Aware Of

The number of supplemental paid sick leave hours provided to full-time employees remains unchanged – up to 80 hours – and these hours are in addition to any other paid sick leave hours employees may have available. 

Part-time employees with regular weekly schedules are entitled to supplemental paid leave equaling the total number of hours they are normally scheduled to work over a two week period. The supplemental pay part-time employees with variable schedules are entitled to depends on their length of employment and is spelled out in detail in the law.   

The new law also tracks the (now expired) federal Families First Coronavirus Response Act’s daily cap of $511, and aggregate cap of $5,110 (unless further federal legislation is enacted that increases these caps, in which case the law defers to applicable federal caps).

All employees, both full-time and part-time, must make an written or oral request to their employer to use supplemental paid sick leave.

Additionally, an employer cannot require employees to use any other paid or unpaid leave, paid time off, or vacation time before using COVID-19 supplemental paid sick leave, or in lieu of COVID-19 supplemental paid sick leave.  However, if an employer has provided COVID-related paid leave at the same (or greater) rate for similar reasons covered by the law (as outlined above) since the beginning of 2021, this may be counted towards the hours the employer is required to provide.

Finally, employers are required to provide employees’ available COVID supplemental sick leave balance on wage statements or in a separate writing.

The Labor Commissioner has made  a model notice publicly available for employers to provide to their employees, available here. For covered employers that do not have employees frequenting the workplace, this notice may be disseminated electronically.  

Also, helpfully, the Labor Commissioner has published a set of FAQs on the new law, available here.

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