On March 19, 2021, California Governor Gavin Newsom signed Senate Bill SB95, which mandates that employers provide supplemental paid sick leave (SPSL) to employees for COVID-related absences. The emergency bill expands upon the 2020 Supplemental Sick Pay (2020 SSP), which expired on December 31, 2020. In addition to covering more employers and requiring paid sick leave for more reasons, the new legislation will apply retroactively to January 1, 2021. Compliance by employers is required as of March 29, 2021, with an expiration date of September 30, 2021.
Qualified Employees and Leave Reasons
SB 95 mandates that employers with 26 or more employees nationwide provide SPSL to qualified employees as related to COVID-19. Qualified employees are defined as individuals who are unable work or telework for any of the following reasons:
- Employee’s Own Care: The covered employee is subject to a quarantine or isolation period related to COVID-19 (see note), 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.
- Care of a Family Member: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 (see note), 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: The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms.
Note: The quarantine or isolation period related to COVID-19 is the period defined as 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.”
Full-time employees (as defined below) will receive 80 hours of SPSL. Employees with part-time
schedules will receive the total number of hours the employee is normally scheduled to work over the two-week period immediately preceding the payment of SPSL. There is a separate calculation for employees who work variable schedules.
A covered employee is considered full-time:
- If the employer considers the covered employee to work full time; or
- If the covered employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took COVID-19 SPSL.
Qualified employees are entitled to SPSL as follows:
- For nonexempt employees, there are three calculation formulas, and employers must pay the higher of the two:
- The employee’s “regular rate of pay for the workweek in which” SPSL was taken, regardless of whether the employee worked overtime in that workweek;
- “The covered employee’s total wages, excluding overtime pay, and then divided by the total hours worked in the full pay periods of the prior 90 days of employment.”
- However, if the local or state minimum wage is greater than either of the calculations above, then the employer must use the minimum wage for the SPSL rate. This approach is a notably different than the 2020 SSP law, which, although it uses the same calculation formulas, allows employers to employ an “either/or” approach and does not require the rate to be at least the applicable state or local minimum wage.
- For exempt employees, SPSL should be paid according to their regular work schedule and at their regular rate of pay.
For all covered employees, SPSL cannot exceed $511 per workday and $5,110 total.
Employers must be in compliance with the new law by March 29, 2021, and it must be applied retroactively to January 1, 2021. This means that covered employees who took qualifying leave between January 1, 2021 and March 28, 2021, can request payment for that leave if it was not paid by the employer in the amount that is required under this law.
If employees request retroactive payment, an employer may credit the hours taken towards SPSL as long as the leave was taken on or after January 1, 2021 and taken for the same COVID-19–related reasons as listed above.
The 2021 SPSL is in addition to any other statutory paid sick leave and any company-provided paid sick time. Employers may not require employees to first exhaust their accrued sick days or vacation.
For individuals working less than full-time, who were previously evaluated for paid sick time related to COVID-19 under a separate policy or new entitlement, those individuals may need to be reevaluated under the terms of SB 95 to ensure they received their full duration of leave at the appropriate level of compensation.
As was required previously for the SSP, employers must continue to document remaining balances of SPSL in written notice to the employee on the wage statement or in a separate written form, coordinated with pay dates. In addition, there is an additional requirement for employers to provide a final SPSL-related paystub to reconcile payments for any leave employees used before the law took effect (retroactive application). Specifically, the final paystub must capture the retroactive payment for the pay period during which payment is made.