This blog provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.
On March 19, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 95, which extends and expands employer requirements to provide supplemental paid sick leave (SPSL) to employees impacted by COVID-19. SB 95 goes into effect on March 29, 2021, (i.e., 10 days after being signed by Gov. Newsom) and adds sections 248.2 and 248.3 to the California Labor Code.
Last September, the California legislature passed AB 1867 to, among other things, codify Gov. Newsom’s Executive Order N-51-20 (signed April 16, 2020), which provided supplemental paid sick leave to food sector employees for an employer with 500 or more employees nationwide as a result of the COVID-19 pandemic.
However, AB 1867 expired on December 31, 2020 — with no action or clarification until now on whether the requirements would continue or be modified.
Yes. The new law applies to many more California employers, now applying to public and private employers with more than 25 employees as defined by Labor Code section 245.5.
Yes. In addition to more employees being covered by the nature of more employers being covered, SPSL is now expanded to employees who are “unable to work or telework” due to one of the qualifying reasons discussed below — as opposed to the previously more limited language.
Yes. There are seven qualifying reasons for SPSL under SB 95:
As with AB 1867, an employee is entitled to SPSL if:
SB 95 expands qualifying reasons with the following five additional reasons, some of which address COVID-19 vaccines:
Employers who previously complied with AB 1867 and provided SPSL in 2020 are required to provide an additional “bank” of leave for employees in 2021.
As with AB 1867, employers must provide 80 hours of SPSL to a full-time employee or an employee who worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date employee took SPSL.
Part-time employees are entitled to SPSL as follows:
Yes. The rate of pay for this new SPSL differs from AB 1867.
For exempt employees, an employer must calculate the rate of pay in the same manner as the employer calculates wages for other forms of paid leave time.
Non-exempt employees are entitled to the highest of the following:
The amount of SPSL is capped at $511 per day and $5,110 total per employee unless these amounts are increased by the federal Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (commonly referred to as the FFCRA).
Yes. Employers must post a notice of the new requirements in a conspicuous place in the workplace, or disseminate by electronic means if the employees do not frequent a workplace.
Like AB 1867, SPSL under SB 95 must be reflected on itemized wage statements (or other written notice) as required by Labor Code section 246(i) in addition to any regular paid sick leave the employee is entitled to under the California Healthy Workplaces, Healthy Families Act of 2014. In addition, for part-time employees or those with variable schedules, SB 95 allows employers to satisfy the itemized wage statement requirements (or other written notice) by doing an initial calculation of SPSL available and indicating “(variable)” next to that calculation. The actual amount of SPSL will then need to be updated on the itemized wage statements (or other written notice) when such employee requests to use SPSL or requests relevant records. The wage statement requirement becomes enforceable on the next full pay period after March 29, 2021.
SB 95 applies retroactively to January 1, 2021.
First, if an employer continued to provide SPSL or Families First Coronavirus Response Act (“FFCRA”) leave on or after January 1, 2021, consistent with the new requirements of SB 95, then those hours may count towards the SPSL obligation. Generally, if leave is taken under the FFCRA, the employer may receive a federal tax credit. However, there are exceptions! (Check with counsel!)
Second, if an employer did not provide paid leave to an employee eligible for SPSL or did not compensate the employee in an amount equal to or greater than the amount of compensation for SPSL to which the employee is entitled to under SB 95, then “upon the oral or written request of the employee,” the employer must provide the employee with a retroactive payment that provides for such compensation from January 1, 2021.
Third, for any such retroactive payment, the number of hours of leave corresponding to the amount of the retroactive payment shall count towards the total number of hours of SPSL that the employer is required to provide to the employee under SB 95.
Finally, this retroactive payment shall be paid on or before the payday for the next full pay period after the employee’s oral or written request, and the itemized wage statement must reflect this retroactive payment.
Generally, no. This bill prohibits an employer from requiring an employee to use other paid or unpaid leave, paid time off or vacation time provided by the employer to the employee before that employee uses SPSL or in lieu of SPSL.
Yes. In order to satisfy Cal/OSHA’s exclusion pay requirements (i.e., when an employee is excluded from the workplace due to COVID-19 exposure as set forth in Cal/OSHA’s Emergency Temporary Standards effective November 30, 2020), an employer can require an employee to first exhaust the SPSL before the employer is required to pay exclusion pay under Cal/OSHA’s Emergency Temporary Standards.
No. SB 95 is set to expire on September 30, 2021. That said, as with AB 1867, an employee who is on SPSL at the time of the expiration of this new law must be permitted to take the full amount of SPSL the employee would have otherwise been entitled to.
Garcia & Gurney, ALC will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s blog as additional information becomes available. If you have any specific questions, feel free to contact us.
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