Hunton Employment & Labor Perspectives

Employers with more than 25 employees must provide COVID-19 supplemental paid sick leave to their California employees under a recent law signed by the Governor.  This new law is broader than California’s prior COVID-19 paid sick leave law and, unlike the prior law, also covers employees who telework. The new sick leave entitlement is retroactive to January 1, 2021 and extends until September 30, 2021.

Who Must Provide Supplemental Paid Sick Leave?

SB 95 covers all employers with more than 25 employees. California’s prior COVID-19 sick leave law (Assembly Bill 1867) expired on December 31, 2020, and applied only to private businesses with 500 or more employees.

Who Is Eligible for Supplemental Paid Sick Leave?

SB 95 applies to all California employees who are unable to work or telework for a covered employer.  Unlike AB 1867, coverage under SB 95 is no longer limited to employees who were required to leave their homes to perform in-person work for an employer.  Under the new law, coverage now extends to teleworkers as well.

Employees are entitled to supplemental paid sick leave if they are unable to work due to any of the following reasons:

• The covered employee is subject to a federal, state, or local quarantine or isolation period related to COVID-19. The covered employee will be permitted to use COVID-19 sick leave for the minimum quarantine or isolation period under the federal, state, or local order/guidelines that provide for the longest such minimum period.
• The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
• The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
• The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The covered employee is caring for a family member (1) who is subject to a federal, state, or local quarantine or isolation period related to COVID-19, or (2) who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The covered 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.

Notably, covered employees are entitled to take COVID-19 sick leave for a broader range of purposes than permitted under the previous law.  For instance, covered employees are now entitled to take leave in connection with attending an appointment to receive a vaccine, as well as to recover from symptoms related to taking the vaccine.  Also, the law now provides for sick leave in order to care for family members, which include a child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling.

How Much Leave Is An Employee Entitled To?

Covered employees are entitled to leave as follows:

• Employees are entitled to 80 hours of paid sick leave if their employer considers them “full time” or if they were scheduled to or did work on average at least 40 hours per week in the two weeks preceding the date of the leave.

Employees who are not full-time or did not average 40 hours as described above are entitled to the following amounts of leave:

• Employees with a normal weekly schedule are entitled to leave equal to the total number of hours the employee is normally scheduled to work over two weeks.
• Employees who work a variable number of hours are entitled to leave equaling 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. For employees who have worked for an employer for fewer than six months but more than 14 days, this calculation must be made over the entire period the covered employee has worked for the employer.  If the employee has worked for the employer 14 days or fewer, then the leave entitlement shall equal the total number of hours the covered employee has worked for that employer.
• Employees who work a variable number of hours and have worked for a period of 14 or fewer days are entitled to leave equaling the total number of hours the employee has worked for that employer.

What Wage Rate Must Supplemental Sick Pay Be Paid Out At?

For exempt employees, pay for supplemental sick leave must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

For non-exempt employees, each hour must be compensated at a rate equal to the highest of the following:

• A rate calculated in the same manner as the regular rate of pay for the workweek in which the covered employee uses the leave, whether or not the employee actually works overtime in that workweek.
• A rate calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
• The state minimum wage.
• The local minimum wage to which the covered employee is entitled.

However, supplemental paid sick leave is capped per employee at $511 per day and $5,110 in total.

To What Period Of Time Does The Law Apply?

 The requirement to provide COVID-19 sick leave applies retroactively to January 1, 2021.  The retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request of the covered employee.

Are Employers Required To Comply With Any Notice Requirements?

Yes.  Employers must include notice of the amount of supplemental sick leave available on an employee’s wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.  The law further provides:

• The COVID-19 supplemental paid sick leave must be set forth separately from regular paid sick days.
• For employees with part-time/variable schedules, employers can provide an initial calculation of leave available and indicate “(variable)” next to that calculation. This means the calculation for variable leave entitlements does not have to be made each pay period for the wage statement.  However, the calculation should be updated on the wage statement when an employee requests to use leave or requests their payroll records under Labor Code Section 247.5.

The wage statement requirement becomes effective on the next full pay period following the March 29, 2021, date of enactment.

Employers also must post a notice in the workplace summarizing the right to supplemental paid sick leave. The Labor Commissioner must publish a model notice that can be used for this purpose within seven days of the enactment of SB 95. For employers whose employees do not frequent the workplace, notice may be disseminated by email.

How Does Supplemental Sick Leave Interact With Benefits Under Other Laws?

Supplemental paid sick leave under the new law is provided in addition to paid sick leave available under California Labor Code section 246 and that was provided for under the prior AB 1867.  The law prohibits employers from requiring an employee to use any other paid or unpaid leave, paid time off, or vacation time before using supplemental paid sick leave or in lieu of supplemental paid sick leave.

Note that under the Cal-OSHA COVID-19 Emergency Temporary Standards (ETS), employers must maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure.  SB 95 expressly permits an employer to require covered employees to first exhaust their COVID-19 sick leave before providing exclusion pay under the ETS.

Also, an employer may be able to offset the new supplemental paid sick leave amount with other supplemental benefits previously provided. For the offset to apply, however, the other supplemental benefits (1) must be payable for the same reasons as those provided under SB 95, and (2) must compensate the employee in an amount equal to or greater than the amount provided under the law.  Leave taken under Labor Code section 246 and the previous AB 1867 do not count towards the offset.  However, the offset may include paid leave provided by the employer pursuant to any federal or local law in effect as of January 1, 2021, if this leave was provided for any of the same reasons provided under SB 95.