On March 19, 2021, Governor Gavin Newsom signed Senate Bill 95 requiring California employers with more than 25 employees to provide COVID-19 supplemental paid sick leave to covered employees.  Employers have until March 29, 2021 to ensure compliance with the new law, which is retroactive to January 1, 2021.  California’s previous supplemental paid leave expired on December 31, 2020.  Much like the American Rescue Plan Act of 2021 (ARPA), Senate Bill 95 expands on the previous supplemental paid leave and provides additional circumstances in which the employer must provide leave, and will remain in effect until September 30, 2021.

Senate Bill 95 applies to all employees in California who are unable to work or telework for an employer for any of the following reasons:

• The employee is subject to a quarantine or isolation period;
• The employee has been advised by a healthcare 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 prevent 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; and
• 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.

There is also a new bank of COVID-19 supplemental paid sick leave that is available to employees.  Senate Bill 95 provides the following amount of COVID-19 supplemental paid sick leave:

• Full-time workers or those scheduled to work on average at least 40 hours per week in the two preceding weeks before they received the leave, are entitled to 80 hours of supplemental paid sick leave. Employees who do not meet this criterion are allowed leave as follows:
• If the covered employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work for the employer over two weeks.
• If the covered employee works a variable number of hours, 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. If the covered employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation must instead be made over the entire period the covered employee has worked for the employer.
• If the covered employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the total number of hours the covered employee has worked for that employer.

The employer must provide COVID-19 supplemental paid sick leave immediately.  An employee may use the COVID-19 supplemental paid sick leave in any increment, up to the total entitled number of hours, upon oral or written request to the employer.  Under Senate Bill 95, the employer must compensate the employee at a rate equal to the following:

• For non-exempt covered 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 supplemental paid 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; or
  • The local minimum wage to which the covered employee is entitled.
• For exempt covered employees, COVID-19 supplemental paid sick leave must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

The provisions of Senate Bill 95 are retroactive to January 1, 2021.  The provisions governing retroactive payments are as follows:

• For any leave already taken, if the employer did not compensate the covered employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered employee is entitled under the new law, then upon the oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.
• 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 COVID-19 supplemental paid sick leave that the employer is required to provide to the covered employee.
• Retroactive payments must be paid on or before the payday for the next full pay period after the oral or written request of the covered employee. The retroactive payment must be reflected on the written notice for the corresponding pay period.

An employer is not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave.  A covered employee who has reached the maximum amounts of COVID-19 supplemental paid sick leave may choose to utilize other paid leave that is available to the covered employee in order to fully compensate the covered employee for leave taken.

Employers must provide employees with written notice that sets forth the amount of supplemental paid sick leave available for use, separate from paid sick days, on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. The Labor Commissioner provided this poster to give to employees in order to comply with the notice requirement of Senate Bill 95. For purposes of COVID-19 supplemental paid sick leave only, if an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through e-mail.

Employers who already provide COVID-19 supplemental paid sick leave voluntarily under the FFCRA may credit other supplemental paid leave provided to an employee since January 1, 2021 for the same qualifying reasons, toward COVID-19 supplemental paid leave in some circumstances.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.