California Retroactively Extends Sick Leave Coverage for Employees Affected by COVID-19

California Governor Gavin Newsom signed into law Senate Bill 95 (SB 95) on March 19, 2021. SB 95 requires employers to provide employees with supplemental paid sick leave (CSPSL) for various absences related to COVID-19 and creates Cal. Lab. Code 248.2. This supplemental paid sick leave would be in addition to any other paid time off benefits to which the employee may be entitled.

EFFECTIVE DATES

SB 95 was enacted on March 19, 2021; but is retroactive to January 1, 2021, and employers will have until March 29, 2021 to be compliant. This means that employees who incurred an unpaid absence related to COVID-19 any time after January 1, 2021 may be entitled to receive retro pay (up to 80 hours) for that absence. As written, the new law is set to expire on September 30, 2021.

COVERED EMPLOYERS AND EMPLOYEES

SB 95 is more encompassing than the previous 2020 COVID-19 supplemental paid sick leave law and covers any California employer (including state, political subdivisions of the state, and municipalities) with more than 25 employees.

A covered employee is one who works or teleworks for a covered employer.

REASONS FOR LEAVE

The law allows employees to use CSPSL if they are unable to work or telework for the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID-19 or caring for a family member subject to a quarantine or isolation period related to COVID-19
• The employee is attending an appointment to receive a COVID-19 vaccine
• The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
• 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

HOW MUCH LEAVE IS AVAILABLE TO EMPLOYEES?

The total number of hours available to an employee for CSPSL still depends on the employee’s regular work hours.

• Full-time employees, those considered full-time by the employer, or who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee takes CSPSL, are entitled to 80 hours of CSPSL
• Employees with a fixed weekly schedule are entitled to the total number of hours normally scheduled over two weeks
• Employees on a variable schedule are entitled to 14 times the average number of hours worked each day in the six months preceding the date the employee takes CSPSL. If the employee has worked for the employer for less than six months, the total length of their employment is used, unless the employee has been employed for 14 days or less. In that case, the total number of hours worked is used

HOW SHOULD THE LEAVE BE ADMINISTERED?

Only the employee can determine how many hours of COVID-19 supplemental paid sick leave to use; but the employee is not allowed to exceed his or her allotment (up to 80 hours). The employer should make CSPSL available for immediate use upon an oral or written request by the employee.

The requirement for CSPSL remains in place until September 30, 2021. If an employee begins his or her leave on September 30, 2021, the employee is still entitled to his or her full CSPSL allotment.

COMPENSATION FOR COVID-19 SUPPLEMENTAL PAID SICK LEAVE

CSPSL for non-exempt employees must be paid at an hourly rate equal to the highest of:

• their regular rate of pay for the last pay period including amounts pursuant to any applicable collective bargaining agreement (CBA);
• the state minimum wage; or
• the local minimum wage.

For exempt employees, CSPSL payments should be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Pay for CSPSL is capped at $511 per day or $5,110 in the aggregate. After March 29, 2021, payment of CSPSL must be made no later than the payday for the next regular payroll period after the leave was taken.

INTERACTION WITH OTHER LEAVES

CSPSL under SB 95 is in addition to any “regular” paid sick leave required under the California paid sick leave law, Cal. Lab. Code 246. However, an employer cannot require employees to use any other paid/unpaid leave, paid time off, or vacation before using, or in lieu of using, CSPSL.

Employers who provide supplemental paid sick leave hours for leave taken on or after January 1, 2021 related to SB 95’s covered reasons, may count those hours towards the required amount of CSPSL hours under the new law. But, the compensation for those hours must be equal to, or greater than the compensation the employee would have received under SB 95. This includes supplemental paid sick leave provided pursuant to federal or local law.

LIKELY NO CBA EXEMPTION

Similar to the 2020 supplemental sick leave law, SB 95 does not specifically contain a CBA exemption.

NOTICE AND WAGE STATEMENT REQUIREMENTS

Employers covered by Cal. Lab. Code 248.2 must post this poster drafted by the Labor Commissioner. If there are any employees who do not frequent the workplace, the notice requirement can be satisfied by disseminating the notice electronically. Employers must also provide notice of the amount of CSPSL available each pay period either on the employee’s wage statement or a separate writing, as required by Cal. Lab. Code 246(i). The amount of CSPSL must be displayed separately for any other available sick leave. This notice requirement goes into effect the first full pay period following March 29, 2021.

ENFORCEMENT

The Labor Commissioner is expressly authorized to enforce the requirements of SB 95, including investigations, citations, and ordering temporary relief to mitigate violations. If the Labor Commissioner finds the COVID-19 supplemental sick leave pay was unlawfully withheld, the employer may face administrative penalties of up to $4,000 in the aggregate. The Labor Commissioner or Attorney General may bring a civil action for legal and equitable relief, including reinstatement, back pay, the payment of sick days unlawfully withheld, and liquidated damages

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Century City
Harry Johnson

Los Angeles
Jackie Aguilera
Kate McGuigan
Jennifer Zargarof 

Orange County
Barbara Miller
Daryl Landy

San Francisco
Mike Schlemmer

Silicon Valley
Alicia Farquhar