California’s New COVID-19 Supplemental Paid Sick Leave

On March 19, 2021, Governor Gavin Newsom signed a new COVID-19 Supplemental Paid Sick Leave (“SPSL”) into law. While the new SPSL is similar to California’s previous COVID-19 Supplemental Paid Sick Leave law that expired on December 31, 2020, it contains substantial differences. The SPSL will go into effect on March 29, 2021 and is retroactive to January 1, 2021.

Covered Employers. All employers with more than 25 employees are covered by the new SPSL. The previous SPSL covered employers with 500 or more employees nationwide. Firefighters and providers of in-home supportive services are subject to separate obligations.

Qualifying Employees. All employees working for covered employers are eligible for leave. Now, employees may take supplemental paid sick leave 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;

•           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;

•           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 period or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19; or

•           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.

Employers cannot request a medical certification before granting COVID-19 supplemental paid sick leave. Employees are entitled to take leave immediately upon their request.

Leave Amounts. Full-time employees – those who worked or were scheduled to work forty hours per week in the two weeks prior to taking SPSL leave – are eligible for up to 80 hours of SPSL leave. Part-time employees are eligible for the total number of hours they are normally scheduled to work over two weeks. If a part-time employee works a variable number of hours, the employee is eligible for 14 times the average number of hours the employee worked each day over the prior six months (or over the total time of employment if less than six months).

Rate of Pay. For non-exempt employees, employers must pay the highest of the following rates:

•           Their regular rate of pay;

•           Their total wages, not including overtime premium pay, divided by their total hours worked in the full pay periods of the prior 90 days of employment;

•           The state minimum wage; and

•           The local minimum wage to which the employee is entitled.

For exempt employees, the rate of pay must be calculated in the same manner that the employer calculates wages for other forms of paid leave.

Like the previous SPSL, pay is capped at $511 per day and $5,110 in the aggregate. However, if subsequent federal legislation increases the maximum amounts, then the federal maximums will apply to SPSL. In other words, the maximum amount of SPSL pay will match any federal COVID-19 paid sick leave that provides for a higher figure.

Interaction with Other Employer Provided Sick Leave. Paid leave under the SPSL is in addition to any other paid sick leave provided by the employer. Moreover, employers cannot require an employee to use any other paid or unpaid leave, paid time off, or vacation before using SPSL.

Interaction with Other COVID-19 Leave Entitlements. Leave provided to an employee under a different COVID-19 paid leave law after January 1, 2021, will count against an employee’s SPSL leave if the leave is available for the same reasons and provides pay at the same rate as SPSL. For example, if a full-time employee receives ten hours COVID-19 paid leave under the FFCRA or a local ordinance for reasons covered by the SPSL, then the employee will be eligible for ten fewer hours of SPSL leave.

Interaction with Cal/OSHA Exclusion Pay. Under the Cal/OSHA Emergency Temporary Standards, employers must continue the benefits of employees who are excluded from the workplace due to COVID-19 exposure. The new SPSL provides that employers may require employees to first exhaust their leave under the SPSL before receiving exclusion pay.

Offset. The law also contains an offset provision stating that if an employer has already provided an employee with supplemental paid leave after January 1, 2021, for any of the qualifying reasons included in this law, and the amount is equal to or greater than that required by this law, then the employer may count the hours of the other paid benefit or leave towards the new requirement. However, because SB 95 provides a fresh bank of leave, any leave granted last year under AB 1867 or the Families First Coronavirus Response Act (FFCRA) does not count towards the new leave obligations.

Notice & Paystub Requirements. Employers are required to provide notice to their employees of their right to SPSL. The Labor Commissioner created a model notice. Employers may download the posters and distribute as appropriate, including sending the notice electronically to employees who do not frequent the workplace. Employers need to provide notice before March 29, 2021.

An employee’s available SPSL leave must also be reflected on itemized wage statements. It must be set forth separately from regular paid sick pay. For part-time employees and employees with variable schedules, the wage statement requirement is met by doing an initial calculation of SPSL leave available and indicating “(variable)” next the calculation. Employers must still provide an updated calculation when an employee requests to use SPSL or requests copies of their payroll records under Cal. Lab. Code § 247.5.

Retroactivity. The new SPSL applies retroactively to January 1, 2021. Upon oral or written request, employers are required to provide retroactive payments to employees for leave taken for any of the qualifying reasons between January 1, 2021 and March 28, 2021. Employers are only required to provide this retroactive payment if the employee did not receive compensation equal to the amount he or she would be entitled to under the SPSL. The retroactive pay is due on or before the payday for the next full pay period after the employee’s request. Any retroactive SPSL received by an employee counts against the employee’s total SPSL eligibility. 

Expiration Date. The new SPSL expires on September 30, 2021.

Takeaways for Employers. This expansive new leave mandate for employers could be costly and administratively burdensome, particularly when it comes to the retroactive component. Employers should consult with legal counsel on implementing this new leave requirement, which begins March 29, 2021, as well as potential interactions with other laws and ordinances.

By: Rebecca L. Gombos, Esq.

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