On March 19, 2021, Governor Newsom signed Senate Bill 95 (“SB-95”), which added Labor Code sections 248.2 and 248.3. Under Labor Code section 248.2, most employers in California will be required to provide COVID-19 Supplemental Paid Sick Leave (“COVID-19 Sick Leave”) to covered employees who are unable to work or telework for reasons related to COVID-19.
The COVID-19 Sick Leave requirements of SB-95 take effect on March 29, 2021 and will apply retroactively to January 1, 2021. SB-95 will remain in effect through September 30, 2021. However, an employee who is on COVID-19 Sick Leave at the time SB-95 expires must be permitted to take the full amount of COVID-19 Sick Leave to which the employee would have otherwise been entitled.
SB-95 requires California employers who employ more than 25 employees, including public agencies, to provide COVID-19 Sick Leave to covered employees.
Employees Covered Under COVID-19 Sick Leave
COVID-19 Sick Leave is available to any employee of a covered employer who is unable to work or telework due to one of the following reasons:
- The employee is subject to a quarantine or isolation period related to COVID-19 as defined by the State Department of Public Health (“CDPH”), the federal Centers for Disease Control and Prevention (“CDC”), or a local health officer who has jurisdiction over the workplace.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
- 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 family member, who is subject to a quarantine or isolation by the CDPH, CDC, a local health officer, or a health care provider.
- The employee is caring for a child, whose school or place of care is closed or unavailable for reasons related to COVID-19 on the premises.
All employees of covered employers are entitled to COVID-19 Sick Leave, regardless of the length of time they have worked for that employer.
COVID-19 Sick Leave Entitlements
Covered employees are entitled to the following amount of COVID-19 Sick Leave:
- 80 hours of COVID-19 Sick Leave if the employee is considered full-time, or the employee was scheduled to work, on average, at least 40 hours per week for the two weeks before the date the employee took COVID-19 Sick Leave.
- Active-duty firefighters scheduled to work more than 80 hours in the two weeks preceding the date upon which the employee took COVID-19 Sick Leave are entitled to COVID-19 Paid Sick Leave equal to the total number of hours that the individual was scheduled to work in the preceding two weeks.
- If a covered employee does not meet the criteria above, the employee is entitled to the following amount of COVID-19 Sick Leave:
- For employees with a regular weekly schedule, the number of hours the employee is normally scheduled to work over two weeks.
- For employees with variable schedules, 14 times the average number of hours worked per day over the past 6 months.
- For employees who work a variable number of hours and have been employed by the employer for less than six months but more than 14 days, 14 times the average number of hours the employee worked the entire period the employee has worked for the employer.
- For employees who work variable hours and have been employed for 14 days or fewer, the total number of hours worked for the employer.
Covered employees may determine how many hours of COVID-19 Sick Leave to use up to the total number of hours to which the covered employee is entitled.
Compensation Calculation for COVID-19 Sick Leave
Each hour of COVID-19 Sick Leave must be compensated at a rate equal to the following:
- For nonexempt employees, by the highest of the following:
- Calculated in the same manner as the regular rate of pay for the workweek in which the covered employee uses COVID-19 Sick Leave, whether or not the employee actually works overtime in that workweek.
- Calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
- The state minimum wage.
- The local minimum wage to which the covered employee is entitled.
- For exempt employees it shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
Covered employers are not required to pay covered employees more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate to a covered employee for COVID-19 Sick Leave unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act (“FFCRA”). If such federal legislation is passed, then COVID-19 Sick Leave pay will be capped at the new applicable amounts under the federal law. Employees who reach the maximum amounts of COVID-19 Sick Leave pay may opt to use other paid sick leave benefits available to them in order to receive full pay while on COVID-19 Sick Leave.
Interaction with Other Leave
- COVID-19 Sick Leave available under SB-95 is in addition to any paid sick leave available under California Labor Code section 246. Employers may not require an employee use other paid or unpaid leave, paid time off, or vacation time provided by the employer before the employee uses COVID-19 Sick Leave.
- SB-95 does not expressly address whether paid sick leave that may be available to employees under a collective bargaining agreement can be run concurrently with COVID-19 Sick Leave. Until further guidance becomes available on this issue, public agencies should recognize that running paid sick leave under a collective bargaining agreement simultaneously with COVID-19 Sick Leave poses legal risks.
- Employers may require an employee exhaust their COVID-19 Sick Leave prior to using any other form of leave available to the employee in order to satisfy the requirements under the Cal-OSHA COVID-19 Emergency Temporary Standards.
- Employers may count hours of other supplement leave benefits leave taken on or after January 1, 2021 towards employees’ COVID-19 Sick Leave entitlement if that leave (1) is payable for one of the qualifying reasons set forth above, and (2) compensates the employee in an amount equal to or greater than the amount of compensation for COVID-19 Sick Leave to which the employee is entitled.
- For employees who were paid at a lesser rate than what is required under SB-95, the employer must make a retroactive payment of the difference between what was paid and what was required upon oral or written request of a covered employee.
- Other supplemental benefits that may be counted towards COVID-19 Sick Leave entitlements does not include paid sick leave to which the covered employee is entitled under California Labor Code sections 246, 248(e) or 248.1(f) but may include paid leave provided by the employer pursuant to any federal or local law in effect or that became effective on or after January 1, 2021, if the paid leave is provided under that law for any of the same reasons for which leave is available under SB-95.
The requirement to provide COVID-19 Sick Leave applies retroactively to January 1, 2021. This means that a covered employee is eligible for retroactive pay for any leave taken for one the qualifying reasons under SB-95 between January 1, 2021, and March 28, 2021, if the employer did not compensate the employee in an amount equal to or greater than the amount of compensation the employee is entitled to under SB-95. To receive retroactive payment, an employee must make an oral or written request.
- Retroactive payments count towards the total number of hours of COVID-19 Sick Leave that the employer is required to provide.
- Retroactive payments must be paid on or before the payday for the next full pay period after an employee makes an oral or written request for such payments.
Employers must post notice of COVID-19 Sick Leave benefits in the workplace. If covered employees do not frequent the workplace, notice may be sent electronically. The Labor Commissioner has developed a model notice for employers to use for this purpose.
American Rescue Plan Act (“ARPA”) and COVID-19 Sick Leave
The ARPA, which was signed by President Biden on March 11, 2021, may provide some financial relief to public agencies now required to provide COVID-19 Sick Leave under SB-95.
- The ARPA established the Local Fiscal Recovery Fund (“CLFR”) to provide $130 billion in funding to local governments to mitigate the fiscal effects caused by the COVID-19 pandemic.
- CLFR Funds may be used to:
- Respond to the COVID-19 emergency and address its economic effects, including aid to households, small businesses, nonprofits, or aid impacted industries such as tourism, travel, and hospitality.
- Provide premium pay to essential employees or make grants to the employers of essential employees. Premium pay may not exceed $13 per hour above regular wages.
- For the provision of government services of the reduction in revenue due to the pandemic (relative to revenues collected in the most recent full fiscal year prior to the emergency).
- Make necessary investments in water, sewer, or broadband infrastructure.
- CLFR Funds will likely be available to cover at least some of the costs that will be or have been incurred by public agencies required to provide COVID-19 Sick Leave.
- All CLFR funds must be spent on costs incurred on or before December 31, 2024.