Effective March 29, 2021 and continuing through September 30, 2021, California employers with 25 or more employees must provide up to 80 hours of paid COVID-19 sick leave, under the 2021 COVID-19 Supplemental Paid Sick Leave law (SB 95). Pay is generally determined based on the employee’s regular rate (for non-exempt employees) or the rate at which other paid leave is paid (for exempt employees), and is capped at $511 per day and $5,110 in the aggregate. Importantly, the entitlement is retroactive, in that any employee who took qualifying leave between January 1, 2021 and March 29, 2021 is entitled to pay for that time off, provided that the employee makes a written or oral request for the retroactive pay on or after March 29th; employers do not need to go back and ascertain eligibility on their own. The retroactive payment must be made “on or before the payday for the next full pay period after the oral or written request.”
Leave under this law is available to employees unable to work or telework for any of the following reasons:
- Caring for Oneself: If the employee is subject to a quarantine or isolation period related to COVID-19, or has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a Family Member: If the employee is caring for a family member (as defined in the state sick leave law) who is either subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
- Vaccine-Related: If the employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms.
Of note, a quarantine or isolation order must be specific to the employee to create eligibility for leave; a general stay-at-home order would not result in eligibility, whereas guidelines or an order of a local health officer that directs individuals who live with someone who has COVID-19 to quarantine themselves would. In such cases, the “quarantine or isolation period” referred to above would be defined by an order or guidelines of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace.
This new COVID-19 Supplemental Paid Sick Leave is in addition to any other statutorily required non-COVID-19 sick leave, such as leave available under California’s sick leave law (the Healthy Workplace Healthy Family Act) or any county or city sick leave ordinance. However, employers that provided equal or greater leave and pay for the same qualifying reasons since January 1, 20201 can count that time against the new entitlement. The COVID-19 Supplemental Paid Sick Leave law also provides that employers may require employees to first exhaust their COVID-19 supplemental paid leave before paying out earnings continuation under the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). The ETS is a controversial regulation that became effective November 30, 2020. Among other things, the ETS requires employers to provide essentially unlimited pay and benefits for absences occasioned by workplace-related COVID-19 exposure or illnesses, and requires employers to provide testing for employees and to exclude from the workplace employees who have tested positive for or been exposed to COVID-19 until return-to-work criteria are met. (Employers that are not familiar with this existing, separate obligation should review Cal/OSHA’s FAQs and the posters and other model documents that have been issued to assist with compliance.)
California’s Labor Commissioner has posted FAQs on the new COVID-19 Supplemental Paid Sick Leave law addressing a number of important operational questions, such as how to calculate the amount of time and pay available to employees with part time or irregular schedules and/or variable earnings. A chart comparing some of the state’s leave entitlements is also available, although it does not address the Cal/OSHA ETS or any county or local sick leave requirements.
Non-compliance with the new COVID-19 Supplemental Paid Sick Leave law, or retaliation or discrimination against an employee requesting or using the leave, can result in liability for back pay, penalties and reinstatement, among other remedies. Accordingly, Employers should ensure compliance by:
- Posting a notice of the new requirement (available here), or distributing it electronically if employees are not reporting to a physical workplace;
- Including the COVID-19 sick leave balance, separately from regular sick time, on each pay stub or otherwise at each pay period; and
- Providing the new leave and retroactive pay to eligible employees when requested.
As always, please reach out to your Bello Welsh contact if you have any questions about these or any other requirements applicable to California employers.