On March 19, 2021, California Governor Gavin Newsom signed a new law that requires employers with 26 or more employees to provide up to 80 hours of supplemental paid sick leave (SPSL) if a California employee is unable to work for reasons related to COVID-19 (coronavirus). The 2021 COVID-19 Supplemental Paid Sick Leave Law (SB 95) takes effect on March 29, 2021, but is retroactive to January 1, 2021, and lasts through September 30, 2021. This SPSL is in addition to any entitlements under California’s regular paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014).
Covered employers: The law doesn’t specify whether the size of the employer’s workforce is measured based on employment figures within the state or nationwide, and so far the Labor Commissioner’s FAQs are silent on this question. Subject to further guidance, we recommend assuming the law applies if you employ at least 26 employees anywhere in the U.S., and at least one of them works in California.
Reasons for leave: Employees may take leave if they’re unable to work or telework for any of the following reasons:
- The employee must quarantine or isolate due to a COVID-19 order or guideline from the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local health officer who has jurisdiction over the workplace. If orders or guidelines conflict, the longest minimum period applies.
- The employee has been advised by a health care provider to quarantine due to concerns related COVID-19 (e.g., after being exposed to a COVID-19 case).
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is attending a COVID-19 vaccination appointment.
- The employee is unable to work or telework as a result of experiencing symptoms from a COVID-19 vaccine.
- The employee is caring for a family member who must quarantine or isolate due to a COVID-19 order or guideline, or who has been advised by a health care provider to quarantine due to concerns related to COVID-19. “Family member” is defined the same as under California’s regular paid sick leave law: child (any age), parent, parent-in-law, spouse, registered domestic partner, grandparent, grandchild, or sibling.
- 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 time off: Employees are entitled to 80 hours of SPSL if you classify them as full-time or they work (or are scheduled to work) an average of 40 hours per week in the two weeks before taking SPSL. The 80 hours are pro-rated for employees who don’t work full-time. A special calculation applies to employees who work a variable schedule. This is a new “bucket” of leave, even if the employee took California SPSL in 2020. However, if you’re voluntarily providing paid leave in 2021 in order to qualify for tax credits under the federal Families First Coronavirus Response Act (FFCRA), you may count the 2021 FFCRA paid leave toward the 2021 California SPSL. Also, if you’re required to exclude an employee from the workplace due to COVID-19 exposure under the Cal-OSHA COVID-19 Emergency Temporary Standards or the Cal-OSHA Aerosol Transmissible Diseases Standard, you may require the employee to exhaust their 2021 SPSL. Employees have the right to take SPSL from January 1, 2021, through September 30, 2021, although if an employee is taking SPSL on September 30, 2021, they may continue the leave until they use the full amount to which they would have been entitled under this new law.
Amount of pay: SPSL for exempt employees is paid at the normal rate you pay for other forms of paid leave. SPSL for nonexempt (overtime-eligible) employees is paid at one of the following rates, whichever is highest: (1) regular rate of pay for the workweek in which the employee takes SPSL; (2) total wages minus overtime premium pay, divided by total hours worked in the full pay periods of the prior 90 days of employment; (3) state minimum wage; or (4) local minimum wage. However, pay for SPSL is capped at $511 per day, with an aggregate maximum of $5,110. Employees who reach the cap may supplement the pay with any other paid leave available to them, so they’re fully compensated for their time away from work.
Leave requests: Employees may ask for leave verbally or in writing. Because the law is retroactive to January 1, 2021, employees who weren’t paid in the amount required for their time off for a qualifying reason from January 1, 2021, through March 28, 2021, may request 2021 SPSL on or after March 29, 2021. You must include the payment with the paycheck for the next full pay period after the request. For SPSL taken on or after March 29, 2021, you must pay for the leave no later than the payday for the next regular payroll period after the employee takes the time off.
Verification of the need for leave: The law doesn’t provide for a process to request verification of the need for leave. The Labor Commissioner’s FAQs state that in general, you must accept employees’ statements of the need for leave as sufficient verification, unless information comes to your attention that calls into question their need for leave.
Notices to employees: You must expand your normal itemized pay statement to separately list the amount of available COVID-19 SPSL from the amount of regular paid sick leave. For employees with variable schedules, you may meet this requirement by providing an estimate and indicating “(variable)” next to the calculation, although you must update the figures if an employee actually requests SPSL or requests the current figure. This disclosure requirement takes effect on the next full pay period after March 29, 2021. You must also distribute a 2021 COVID-19 SPSL workplace poster. For any of your covered employees who don’t physically come to your workplace, you may provide the poster electronically, such as through email.
Tips: Applying SPSL retroactively under this new law is likely to be a challenge for employers. You should also work with your payroll provider to ensure that the appropriate disclosures are included in your itemized pay statements. We anticipate that the Labor Commissioner may release additional guidance as questions arise, so check their FAQs and contact your Vigilant Law Group employment attorney with any questions.