Effective March 29, 2021, California employers with more than 25 employees must provide up to 80 hours of paid sick leave for certain COVID-19-related reasons. The new law, Senate Bill 95 (adding Labor Code Sections 248.2 and 248.3), is retroactive to sick leave taken beginning January 1, 2021. The law will expire on September 30, 2021.
Last year, California enacted a COVID-19 paid sick leave law that applied to employers with 500 or more employees, and which expired on December 31, 2020. The new California COVID-19 supplemental paid sick leave law (“Supplemental Sick Leave”) requires any business with more than 25 employees to provide Supplemental Sick Leave that is in addition to paid sick leave that the employee is already entitled to under other applicable laws (or previously took under the prior California COVID-19 sick leave law).
Full-time employees are entitled to 80 hours of Supplemental Sick Leave, and part-time employees are entitled to an amount of leave that correlates with: (1) the number of hours the employee regularly works over a two-week period, or (2) if the employee works a variable number of hours, 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took Supplemental Sick Leave.
Employees may use Supplemental Sick Leave when they are “unable to work or telework” because the employee:
- Is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the California Department of Public Health, the U.S. Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace;
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Is attending an appointment to receive a COVID-19 vaccine;
- Is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- Is caring for a family member who is subject to an order or guidelines described in qualifying reason (1), or has been advised to self-quarantine as described in qualifying reason (2); or
- 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.
The Supplemental Sick Leave pay must be paid at the higher of: (1) the employee’s regular rate of pay for the workweek in which the leave was taken, (2) the employee’s total wages (not including overtime pay) divided by the total hours worked in the full pay period of the prior 90 days of employment, (3) the California minimum wage, or (4) the local minimum wage. Supplemental Sick Leave pay is capped at $511 per day and $5,110 in the aggregate for each employee.
Because the law is retroactive to January 1, 2021, employees can request to apply Supplemental Sick Leave to any absence from work since January 1 that was for a covered reason. Once an employee makes an oral or written request for retroactive payment, employers must make the payment on or before the payday for the next full pay period after the request was made.
Employers may credit toward their Supplemental Sick Leave pay obligation any hours of other paid leave that the employer provided to employees on or after January 1, 2021 for absences taken for the same reasons as those contained in the new law. But employers may not force employees to use any other form of paid or unpaid leave or time off (such as company-provided sick leave or PTO) before using Supplemental Sick Leave.
Also, note that recent guidance published by the California Department of Industrial Relations (“DIR”) clarifies that, where an employer requires employees to obtain a COVID-19 test or vaccine, the employer must pay for the time it takes for the testing or vaccination, including travel time. In other words, employees cannot be required to utilize paid leave, including the new Supplemental Sick Leave, for time spent obtaining a mandatory COVID-19 test or vaccine, because such time is considered “hours worked” and is thus compensable.
It is important to note that employee wage statements (paystubs) must reflect an employee’s Supplemental Sick Leave balance, and this information must be differentiated from the employee’s regular sick leave balance. Employers also have the option to instead provide the information in a separate writing to employees at time they receive their paystubs.
In addition, employers must post the model notice issued by the DIR in a conspicuous place in the workplace or send the notice to employees via e-mail. The DIR has also recently published a “2021 COVID-19 Supplemental Paid Sick Leave FAQs” page that provides additional guidance to employers.