On March 19, 2021, Gov. Gavin Newsom signed Senate Bill 95, which extends and expands the requirement for employers to provide supplemental paid sick leave to employees affected by COVID-19. The law places new paid leave requirements on most California employers, and it requires their immediate attention. Gov. Newsom explained the reason for the new law: “Paid sick leave gives workers the time they need to care for themselves and loved ones while keeping their co-workers, families, and community safe.” The law takes effect immediately, but includes a 10-day grace period for employers to start providing sick leave. Employers must begin providing the leave on March 29, 2021. The new law applies retroactively to Jan. 1, 2021, and will remain in effect until Sept. 30, 2021. It’s enforced by the California Labor Commissioner.
The Michael Sullivan & Associates online e-book, Navigating COVID-19: A Legal Guide For California Employers, has been updated with the salient provisions of SB 95. View it in context under California Enacts New Supplemental Sick Leave Mandate Effective March 19, 2021.
Last year, Assembly Bill 1867 was enacted in California to provide supplemental paid sick leave to employees at businesses with 500 or more workers. It was intended to fill the gaps for employees not covered by the federal Families First Coronavirus Response Act (FFCRA), which applied to all employers with a workforce up to 500 employees.
AB 1867 and the FFCRA expired on Dec. 31, 2020. Note: SB 95 does not extend either piece of legislation, but creates an entirely new mandate with a new required “bank” of available paid sick leave. So even if California employers paid out supplemental paid sick leave in 2020, they must create new leave banks for eligible employees in 2021.
The new law applies to all California employers that employ more than 25 employees.
Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave.
Our labor attorneys note that no length of service is required to be eligible for leave. Employees may request the leave orally or in writing.
The first two qualifying reasons for leave (below) were included in the original California and FFCRA paid sick leave laws. SB 95 adds five more. Qualifying reasons for SB 95 leave are:
Our employment legal team notes that full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave.
Full-time is defined as an employee classified as full-time by the employer, or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the date on which leave is taken.
Our employment law attorneys point out that if an employee is not considered full time, his or her schedule and length of employment will determine the amount of leave entitlement as follows:
Nonexempt employees’ pay is calculated as the highest of:
Exempt employees should be paid at the rate the employer calculates wages for other forms of paid leave time.
Currently, the amount paid for supplemental paid sick leave is capped at $511 per day, and an aggregate $5,110.
Employees who reach the maximum supplemental leave payout may use other available paid leave including vacation, paid time off (PTO), or other sick leave to supplement their salary so that they earn up to 100% of their regular salary.
Our labor and employment law firm notes that an employer may not require an employee to use other paid or unpaid time off before the employee uses SB 95 leave.
SB 95’s paid sick leave is in addition to any paid sick leave available pursuant to California’s sick leave law, known as the Healthy Workplace Healthy Family Act of 2014, established in Labor Code section 246.
Late last year, Cal/OSHA enacted Emergency Temporary Standards (ETS) that required employers, among other things, to prepare and implement a COVID-19 Prevention Program. Employers also had to provide “continued earnings” to employees who were excluded from the workplace because of work-related exposures or positive COVID-19 cases. SB 95 clarifies that employers may require an employee to exhaust supplemental paid sick leave under SB 95 before becoming eligible for “continue earnings” under the ETS.
Our employment attorneys note that if an employee took leave for an SB 95 qualifying reason after Jan. 1, 2021 pursuant to any federal, state, or local law, or employer-provided COVID-19 leave, it can be counted as leave provided under SB 95. The employer might be required to provide retroactive payment to the employee for the leave taken if it was unpaid or not paid at the level required by SB 95.
SB 95 supplemental sick leave is retroactive to Jan. 1, 2021. The new law establishes these provisions for retroactive payments:
If all of these conditions are met and the employee requests retroactive pay either orally or in writing, our labor attorneys note that the employer must comply.
Once retroactive payments are made, employers may take credit for the leave hours previously provided.
Retroactive payments must be paid on or before the next full payroll period after the employee requests it.
Employers might have to replenish the PTO, vacation, or other leave banks of employees who used them while on an SB 95 leave prior to its enactment.
Employers must provide employees with notice of the new law. The Labor Commissioner’s Office will release a model notice by the end of March. Employers may provide this notice electronically.
The COVID-19 supplemental paid sick leave balances must be included on itemized wage statements.
A separate section in SB 95 outlines similar leave requirements for providers of in-home health care and supportive services firefighters.
Employers are encouraged to take these steps to ensure compliance with the new law. The employment attorneys at Michael Sullivan & Associates are here to help.
The labor lawyers at Michael Sullivan & Associates, LLC understand how complicated these new employment laws may be for businesses to follow, implement, and comply with. When you partner with our team, we can help you navigate the ins and outs, explain the law to you, and help you when you have questions. In addition, with all of the new labor laws (and old ones), we can help review your business's practice and offer advice where needed. We are passionate about helping your business succeed. If you are interested in learning more, call one of our California employment law offices today!