Brand New COVID Leave Requirements for California Employers

Late Friday afternoon (March 19), California’s Governor, Gavin Newsom signed into law Senate Bill 95, which resurrects the statewide COVID-19 Supplemental Paid Sick Leave that sunset on December 31, 2020. However, the new bill significantly expands which employers must provide supplemental leave to their employees – expanding coverage to those employers with 25 or more employees.

The bill takes effect immediately but provides a 10-day grace period for employers to start providing the supplemental sick leave (meaning March 29, and no later). The new law also applies retroactively to January 1, 2021 and will remain in effect until September 30, 2021. That means that anyone who has missed time from the beginning of the year due to COVID related complications will be entitled to receive retroactive pay (see below for details).

The new law covers employees who are not able to work or work-from-home (referred to as “telework”) for any of the following reasons:

• The employee is subject to a quarantine or isolation 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 against 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 related to COVID-19 and seeking medical diagnosis;
• The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
• 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 no length of service requirement for the leave entitlement provided under the new law, meaning that brand new employees are entitled to the leave.

Full-time employees must be provided 80 hours of supplemental paid sick leave. The bill defines full-time as either an employee who is classified as full-time by the employer or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the leave.

If an employee is not classified as full-time, the employee’s schedule and employment tenure dictates the amount of available leave:

• An employee with a regular schedule is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks;
• An employee with a variable schedule is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the leave; and,
• An employee with a variable schedule who has worked for the employer for 14 days or less is entitled to the total number of hours the employee has worked for the employer.

An employee is entitled to receive his/her regular rate of pay while away. For exempt employees, salary calculation is handled the same as other forms of paid leave time. However, the maximum amount payable to an employee cannot exceed $511 per day and $5,110 in aggregate.

Due to the retroactive effect of the legislation, employers must review and consider retroactive sick leave for anyone who missed time from work between the beginning of the year and now. Any retroactive payment of leave must be paid on or before the next full pay period after the employee makes a request (verbal or written).

Employers who voluntarily provided supplemental paid sick leave on or after January 1, 2021, may be able to count such hours towards satisfaction of the requirements under this new legislation. The bill isn’t clear on this. Please stay tuned

Employers are also required to provide employees with written notice of available leave balances under the supplemental sick leave requirement. For employees who work a variable schedule, this notice can state “(variable)” on the employee’s paystub or written notice.

Finally, and very importantly, all effected California employers (25+ employees) must provide employees with notice of this new law – here is a link to the new poster approved by the Labor Commissioner: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf

Now, more than ever, staying current on the state of California law is imperative for business owners! Stay tuned for more information on the new supplemental sick leave requirements.