Karina B. Sterman

Partner
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New COVID-Related Sick Leave Obligations for California Employers

On March 19, 2021, Governor Newsom signed Senate Bill 95 (SB95), which adds sections 248.2 and 248.3 to the California Labor Code, extending and expanding COVID-related sick leave obligations for all California employers of 26 or more employees. The law, known as the 2021 COVID-19 Supplemental Paid Sick Leave Law (SPSL), takes effect on March 29, 2021, can be applied retroactively to January 1, 2021, and will remain in effect until September 30, 2021. 

The California Department of Industrial Relations (also known as the California Labor Commissioner) has already published the required 2021 COVID-19 Supplemental Sick Leave poster and Frequently Asked Questions (“FAQs”). We set forth below pertinent compliance guidance:

Who must comply with the SPSL?

All employers with 26 or more employees, including those with collective bargaining agreements, must comply.

Which employees of covered employers are eligible for the SPSL?

All employees who cannot work (in the workplace or remotely) and make a request to their employers for SPSL for a “Covered Reason” are entitled to up to 80 hours of SPSL time retroactively from January 1, 2021 through September 30, 2021, immediately upon oral or written request to their employer.

NOTE: Employees may take SPSL time even if they received pay in 2020 under the federal Families First Coronavirus Response Act (FFCRA) or under last year’s state supplemental COVID-19 pay laws. 

What are “Covered Reasons” for SPSL?

An employee must be unable to work or telework due to any one of the following Covered Reasons: 

  • Caring for Themselves: The employee must be subject to a quarantine or isolation period related to COVID-19 (as defined by an order or guidelines of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace) or have been advised by a healthcare provider to quarantine due to COVID-19, or be experiencing symptoms of COVID-19 and seeking a medical diagnosis. 
  • Caring for a Family Member: The employee must be caring for a family member who is either subject to a quarantine or isolation period related to COVID-19, or who has been advised by a healthcare provider to quarantine due to COVID-19, or be caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises. “Family member” includes an employee’s child, grandchild, grandparent, parent, sibling or spouse.
  • Vaccine-Related: The employee must be attending a vaccine appointment or be unable to work due to vaccine-related symptoms.

How much SPSL Leave is available to Covered Employees?

  • Full-time employees receive up to 80 hours of SPSL time. 
  • Part-time employees with a set schedule receive the number of hours that correspond to their average work schedule over a 2-week period. 
  • Part-time employees with variable hours receive 14 times the average number of hours worked per day over the prior 6 months. 

NOTE: SPSL is in addition to, and does not replace, other leave time, such as statutory sick time or vacation time that is available to employees. However, employers may count other COVID-related supplemental paid sick leave provided pursuant to local ordinances for SPSL qualifying reasons toward fulfillment of their SPSL obligations.

How is paid leave calculated?

Non-exempt employees must be paid the highest rate of the following for each hour: 

  • Their regular rate of pay
  • State minimum wage
  • Local minimum wage
  • Average pay (excluding overtime) for the prior 90 days

Exempt employees receive the same rate as is calculated for other leaves.

*There is a cap to SPSL of $511 per day and $5,110 in total SPSL, but if there is a gap between this amount and their pay rate, employees may use other available leave time to bridge the gap. 

What happens if employees received COVID-related time off in 2021 before the law came into effect? 

If an employee has already received COVID-related paid time off in 2021, this may qualify as an offset against SPSL obligations, but as this is a supplemental benefit, there are no offsets for regular statutory sick pay or the 2020 SPSL used by the employee. 

How do employees request “retroactive” SPSL for leaves taken between January 1, 2021, and March 28, 2021?

If an employee took leave between January 1, 2021, and March 28, 2021, for an SPSL qualifying reason but was not paid for this leave in the amount required under this law, then the employee has the right to ask for a “retroactive” payment equal to the amount required. The requirement to pay retroactive SPSL is only required if the employee makes an oral or written request to be paid for the qualifying leave. After the employee makes the request, the employer will have until the payday for the next full pay period to pay the retroactive SPSL.

Who determines the need for SPSL?

Employees need only make an oral or written request to use SPSL time. Employees alone determine how many SPSL hours are needed and, with the exception of Cal-OSHA’s COVID-19 Emergency Temporary Standard (ETS) Leave or Cal-OSHA’s Aerosol Transmissible Disease Standard Leave (ATDS), employees may choose whether they will use SPSL or some other paid or unpaid leave benefit their employer provides or the law requires. With respect to ETS and ATDS, before using this time, employers may first require employees to deplete available SPSL time. In other words, if an employee is excluded from work due to COVID-19 exposure in the workplace, the employer may require SPSL to be used before providing exclusion pay under the ETS or ATDS.

An employer is not permitted to ask for medical certification or other substantiation for the need to take time off for SPSL; however, under certain circumstances, an employer may ask for documentation before paying SPSL if the employer has other information indicating that the covered employee is not requesting SPSL for a valid purpose. 

What information are covered employers required to share with employees about SPSL? 

Employers must conspicuously display the DLSE’s workplace poster in the workplace. For telecommuting employees, the poster can be distributed by email. 

In addition, available SPSL time must be identified to employees on their paystubs or in another manner on paydays beginning as of March 29, 2021. In this regard, SPSL must be tracked and displayed separately from other statutory sick leave. Employers may comply with their SPSL paystub obligations by determining the amount of SPSL available, which employers will need to update as SPSL is depleted. For employees that have part-time and variable schedules (and therefore variable leave entitlements), the SPSL specifies that employers satisfy the wage statement obligation by doing an initial calculation of leave available and indicating “variable” next to that calculation on that and subsequent wage statements. 

What are the penalties for non-compliance?

Retaliation and discrimination against an eligible employee requesting or using SPSL is unlawful. An employee who experiences such retaliation or discrimination may file a claim with the Labor Commissioner’s office.