On March 19, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 95, which creates new Labor Code section 248.2 and mandates that employers provide employees with supplemental paid sick leave (SPSL) for various COVID-related absences in addition to paid time off benefits employees receive by law or policy, like non-COVID statutory paid sick leave or vacation. Additionally, SB 95 creates new Labor Code section 248.3, which mandates that providers of in-home supportive and/or waiver personal care services receive SPSL.
The new statutes will apply retroactively to January 1, 2021, and are effective through September 30, 2021, though technically they do not begin until March 29, 2021 – 10 days after the governor signed SB 95.
To employers that had to comply with California’s 2020 food sector and non-food-sector SPSL laws, the statutes will look familiar; coverage, and leave entitlements, however, are broader. As a result, employers will not be able to simply restart in 2021 policies and practices they had in place during 2020 to comply with the then-applicable statewide mandate, though it may be possible to offset this new SPSL obligation with paid leave already provided in 2021. Because the new statutes do not preempt local ordinances, employers may have compliance obligations under the state law and possibly up to 11 similar – but not identical – local ordinances in Long Beach, Los Angeles (City and County), Oakland, Sacramento (City and County), San Jose, San Francisco, San Mateo County, Santa Rosa, and Sonoma County.
Covered Employers, Employees and Family Members
Section 248.2 covers all employees. Additionally, it allows employees to use leave to care for family members – something the now-defunct 2020 law did not. Family member is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.
Amount of Leave Employees Receive and Can Use
The process for determining the amount of leave employees receive under the 2021 law is the same as that for the 2020 law. The leave amount also represents how much leave employees can use through September 30, 2021. More specifically:
- Full-Time Employees: Employees receive 80 hours if either their employer considers them to work full time or, on average, they worked or were scheduled to work at least 40 hours per week in the two weeks preceding the date they took leave.
- Non-Full-Time Employees: Employees with a normal weekly schedule receive the total number of hours they are normally scheduled to work over two weeks. Employees who work a variable number of hours, whose tenure is six months or more, receive 14 times the average number of hours they worked each day in the six months preceding their leave date. If they worked only between 15 days and six months, use this same calculation but over their entire period of employment. Employees who worked 14 days or fewer receive leave hours equal to their total number of hours worked.
An unusual aspect is the law’s retroactivity provision. If an employee took leave for a covered reason between January 1, 2021 and the effective date of the statute, an employer could be required to apply the provisions of the law. This could, as discussed above, involve providing a payment for unpaid time off if an employee makes a request.
Scope and Duration of Leave
Employees who are unable to work or telework – another difference between the 2020 and 2021 laws – can use SPSL for the following reasons, which are more numerous than reasons employees could use California SPSL in 2020:
- Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state, or local orders or guidelines.
- Employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- Employee is attending an appointment to receive a COVID-19 vaccine.
- Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
- Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
- Employee is caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19.
- Employee is caring for a child whose school or place of care is closed or otherwise unavailable on the premises for reasons related to COVID-19.
The requirement to provide SPSL remains in effect through September 30, 2021. If an employee is using SPSL on September 30, however, and the absence would continue without interruption past September 30, the employee gets to continue using available SPSL for that absence.
Importantly, the 2021 law addresses how it interacts with Cal-OSHA requirements. Specifically, if Cal-OSHA COVID-19 Emergency Temporary Standards (ETS) or Cal-OSHA Aerosol Transmissible Diseases Standard (ATDS) require an employer to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure, employers may require an employee to first exhaust SPSL.
Employee Obligations when Using Leave
Employees alone determine how many SPSL hours they need to use. Similarly, with the exception of the ETS or ATDS, employees get to choose whether they will use SPSL or some other paid or unpaid leave benefit their employer provides, or the law requires, to cover an absence.
Employees can use 2021 SPSL immediately when the law takes effect if they make an oral or written request to use leave. Like its 2020 predecessor, the 2021 SPSL law does not contain language allowing employers to ask employees to provide verification or documentation to substantiate their need for leave. Assuming the state labor department does not change its 2020 position, employers might only be able to ask for reasonable supporting verification or documentation if they have evidence that an employee is abusing their entitlement to leave.
Rate of Pay When Employees Use Leave
The 2021 SPSL pay rate calculation differs from the 2020 calculation, which required employers to pay SPSL at the employee’s regular rate for the last pay period, the state minimum wage, or the local minimum wage, whichever rate was highest. Under the 2021 law, for non-exempt employees, generally, there are two calculation formulas. Employers must pay the highest pay rate determined by either calculation. The first pay rate calculation uses the employee’s regular rate of pay, regardless of whether an employee works overtime in the workweek they use leave. The second calculation requires the employer to divide the employee’s total wages – excluding overtime premiums – by their total hours worked in the full pay periods of the prior 90 days of employment. But, if the applicable state or local minimum wage is a greater than what either calculation produces, employers use that amount for the SPSL rate.
This “highest of” approach differs from the state’s pre-COVID paid sick and safe time law, which, although it uses the same calculation formulas, uses an “either/or” approach and does not require the rate to be at least the applicable state or local minimum wage.
For exempt employers, employers calculate SPSL in the same manner they calculate wages for other forms of paid leave. Although the 2021 law does not define “exempt,” an “exempt” definition is included in the state’s pre-COVID paid sick and safe time law. Moreover, under that law, the state labor department, in an opinion letter, said employees are only “exempt” if they are executive, administrative, or professional employees.
Whether “exempt” or otherwise, like the 2020 law, employers need not pay more than $511 for each day an employee uses SPSL, or more than $5,110 overall. A provision unique to the 2021 law, however, allows employees who max out because of the pay caps to use other available paid leave they have (“top up”) so they are fully compensated during the absence.
Notice, Posting & Paystub Requirements
By March 26, 2021 (within seven days of the date of enactment), the state labor department must make a model poster publicly available, which employers must conspicuously display in their workplaces. If employees do not frequent a workplace, employers can distribute the poster electronically, e.g., by email.
Like it did in 2020, California requires information concerning SPSL be available on paystubs or other written notices employees receive on payday. Also, like 2020 standards, there is a provision that says the paystub requirement is not enforceable until the next full pay period following the date that the law takes effect (March 29, 2021).
The 2021 law incorporates into the statute guidance the state labor department issued concerning the 2020 paystub requirement. Specifically, the 2021 law expressly requires that SPSL and pre-COVID statutory paid sick leave be displayed separately. Additionally, for part-time, variable hour employees (part-time employees who don’t have a regularly set schedule), the 2021 law says employers may meet their paystub obligations by performing an initial calculation of SPSL available and indicating “(variable)” next to that calculation, which employers will need to update when employees request to use SPSL. A final SPSL-related paystub requirement concerns true-up payments for leave employees used before the law took effect; specifically, the retroactive payment must be on the paystub for the pay period during which payment is made.