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California Enacts New Supplemental Sick Leave Mandate Effective March 19, 2021

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California Enacts New Supplemental Sick Leave Mandate Effective Immediately

On March 19, 2021, Gov. Gavin Newsom signed Senate Bill 95, which extends and expands a requirement for employers to provide supplemental paid sick to employees affected by COVID-19. The law places new paid leave requirements on most California employers, and it requires their immediate attention.

Gov. Newsom explained the reason for the new law: “Paid sick leave gives workers the time they need to care for themselves and loved ones while keeping their co-workers, families and community safe.”

The law takes effect immediately, but includes a 10-day grace period for employers to start providing sick leave. Employers must begin providing the leave on March 29, 2021.

The new law applies retroactively to Jan. 1, 2021, and will remain in effect until Sept. 30, 2021. It's enforced by the California Labor Commissioner's Office. Read the full bill here.

Previous Supplemental Sick Leave Laws Applicable to California Employers

Last year, Assembly Bill 1867 was enacted in California to provide supplemental paid sick leave to employees working for businesses with 500 or more workers. It was intended to fill the gap for employees not covered by the federal Families First Coronavirus Response Act (FFCRA), which applied to all employers with a workforce up to 500 employees.

AB 1867 and the FFCRA expired on Dec. 31, 2020. Note: SB 95 does not extend either piece of legislation, but creates an entirely new mandate with a required “bank” of available paid sick leave. So even if California employers paid out supplemental paid sick leave in 2020, they must create new leave banks for eligible employees in 2021.

Covered Employers

The new law applies to all California employers with more than 25 employees.

Eligible Employees

Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave.

There is no length of service requirement for the leave entitlement. Employees may request the leave orally or in writing.

Qualifying for Leave

The first two of these qualifying reasons for leave were part of the original California and FFCRA paid sick leave laws. SB 95 adds five more.

  1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guideline of the state Department of Public Health, the federal Centers for Disease Control and Prevention (CDC) or a local health officer with jurisdiction over the workplace.
  2. The employee has been advised by a health-care provider to self-quarantine due to concerns related to COVID-19.
  3. The employee is attending an appointment to receive a vaccine for protection against COVID-19.
  4. The employee is experiencing symptoms related to a COVID-19 vaccine that prevents him or her from being able to work or telework.
  5. The employee is experiencing symptoms related to COVID-19 and is seeking medical diagnosis.
  6. The employee is caring for a family member who is subject to a quarantine for isolation order or has been advised to self-quarantine.
  7. The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Employees Are Eligible for Up to 80 Hours of Leave

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave.

Full time is defined as 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 date on which leave is taken.

If an employee is not classified as full time, his or her schedule and length of employment will determine the amount of leave entitlement as follows:

  1. An employee with a regular schedule is entitled to the total number of hours she or he normally is scheduled to work for the employer over two weeks.
  2. The employee with a variable schedule is entitled to 14 times the average number of hours she or he worked each day for the employer in the six months preceding the leave.
  3. An employee with a variable schedule who has worked for the employer for 14 days or fewer is entitled to the total number of hours she or he has worked for the employer.

The rate of pay for the leave for nonexempt employees is calculated at the highest of these:

  1. the employee’s regular rate of pay for the work week in which he or she uses the leave;
  2. a formula dividing the covered employee’s total wages not including overtime by his or her total hours worked in the full pay period of the previous 90 days of employment;
  3. the state minimum wage;
  4. the local minimum wage to which the employee is entitled.

For exempt employees, the leave is paid at the rate the employer calculates wages for other forms of paid leave time.

Currently, the amount paid for supplemental paid sick leave is capped at $511 per day and an aggregate $5,110.

Employees who reach the maximum supplemental leave payout may use other available paid leave including vacation, paid time off (PTO) or other sick leave to supplement their salary so that they earn up to 100% of their regular salary.

Interaction with Other Leave Laws

An employer may not require an employee to use other paid or unpaid time off before he or she uses SB 95 leave.

California Sick Leave –– The Healthy Workplace Healthy Family Act

SB 95 paid sick leave is in addition to any paid sick leave available pursuant to California’s sick leave law, known as the Healthy Workplace Healthy Family Act of 2014, codified in Labor Code section 246.

Cal/OSHA Emergency Temporary Standards Required Paid Leave

Late last year, Cal/OSHA enacted Emergency Temporary Standards (ETS) that required employers, among other things, to prepare and implement a COVID-19 prevention program, and required them to provide “continued earnings” to employees who were excluded from the workplace because of work-related exposures or positive COVID-19 cases. SB 95 clarifies that employers may require an employee to exhaust supplemental paid sick leave under SB 95 before becoming eligible for “continue earnings” under the ETS. The Cal/OSHA ETS requirements are found here.

If an employee took leave for an SB 95 qualifying reason after Jan. 1, 2021 pursuant to any federal, state or local law, or employer-provided COVID-19 leave, it may be counted as leave provided under SB 95. The employer may be required to provide retroactive payment to the employee for the leave taken if it was unpaid or not paid at the level required by SB 95.

Retroactive Pay May Be Required

SB 95 supplemental sick leave is retroactive to Jan. 1, 2021. The new law establishes these provisions for retroactive payment:

  1. The employee took supplemental paid sick leave specific to COVID-19 on or after Jan. 1, 2021 (for example, a city-mandated leave for quarantine).
  2. The leave was for one of the reasons covered by SB 95 as defined above.
  3. The leave was either unpaid or paid at a lower rate than mandated by SB 95.

If all of these conditions are met and the employee requests retroactive pay either orally or in writing, the employer must comply.

Once retroactive payments are made, employers may take credit for the leave hours previously provided.

Retroactive payments must be paid on or before the next full payroll period after the request of the covered employee.

Employers might have to replenish PTO, vacation or other leave banks of employees who used such leave while on an SB 95 leave prior to its enactment.

Notice Requirements

Employers must provide employees with notice of the new law. The Labor Commissioner’s Office will release a model notice by the end of March. Employers may provide this notice electronically.

Pay Stub Requirements

The COVID-19 supplemental paid sick leave balances must be itemized on wage statements.

  • The COVID-19 supplemental paid sick leave must be denoted separately from regular paid sick days
  • For employees with part-time and variable schedules (making their leave entitlements variable), the new law specifies that the employer satisfy the wage statement obligation by doing an initial calculation of leave available and indicating “variable” next to that calculation on the initial and subsequent wage statements. The calculation must be updated when leave is taken

In-Home Health-Care Providers and Firefighters

A separate section under SB 95 outlines similar leave requirements for providers of in-home health care and supportive services firefighters.

Employer Tax Credits for Providing Paid Time Off for Vaccinations

On April 21, 2021, the Biden administration announced the availability of tax credits for some employers when they provide paid time off to employees to get the COVID-19 vaccination. The intent is for employers to promote vaccination among their workforce without financial burden. The credit may be claimed for employees who get the vaccine and/or are unable to work or telework due to adverse reactions to the vaccine. The credits will be paid for through the Plan, and are available through Sept. 30, 2021. See the fact sheet here.

Employers with fewer than 500 employees are eligible for the tax credits for as many as 80 hours. They are capped at $511 per day or $5,110 total per employee.

The Internal Revenue Service and the U.S. Department of the Treasury have issued guidelines on how to claim the tax credit. See the fact sheet here.

Compliance Recommendations

Employers are encouraged to take these steps to ensure compliance with the new law:

  1. Educate and train human resources and payroll employees about the new supplemental paid sick leave requirements. Employers might want to include in the training the law’s impact on Cal/OSHA’s emergency temporary standard (ETS) exclusion pay, as well as the requirement that the employer replenish vacation, sick leave and PTO banks for leave taken since Jan. 1, 2021 for a covered reason.
  2. Direct payroll employees to create or reinstate a separate COVID-19 supplemental paid sick leave designation on wage statements.
  3. Watch for and post and/or electronically distribute the COVID-19 supplemental sick leave model notice the Labor commissioner issues.

Frequently Asked Questions

  1. Does an employer get credit for voluntarily providing FFCRA leave to employees after Dec. 31, 2020, even though it wasn’t legally required?
  2. Probably. The bill allows employers to get credit for “paid leave provided by the employer pursuant to any federal or local law in effect or that became effective on or after January 1, 2021.” The FFCRA expired Dec. 31, 2020, but employers were allowed to voluntarily provide the leave and receive tax credit through Sept. 30, 2021.
  3. Is an employer required to pay retroactive leave pay only if an employee requests?
  4. It appears that the employee must request the retroactive payment if the qualifying leave taken prior to the enactment of SB 95 wasn’t paid or wasn’t paid at the level it mandates. The language in the bill suggests that employees are able to decide if they want the retroactive payment or if they want to “bank” the hours for use at a later date.
  5. If, after Jan. 1, 2021, an employee used PTO to cover otherwise unpaid leave taken for one of the qualifying reasons for leave under SB 95, must it reinstate the PTO and pay the employee for the time off?
  6. Yes, if the employee requests retroactive pay. See above, Retroactive Pay May Be Required.
  7. If, prior to the enactment of SB 95, an employee took 80 hours of sick leave for an SB 95 qualifying reason and was paid his full salary for the entire leave –– does the employer have any further payment obligation to him?
  8. No, as long as the pay wasn’t from a specific leave bank unrelated to COVID-19, such as California sick leave, vacation or PTO

California Enacts Rehire Law for Certain Employees Laid Off Due to COVID-19

On April 16, 2021 Gov. Newsom signed SB 93 requiring employers in certain industries to rehire, or at least make written job offers to, employees they had laid off because of the COVID-19 pandemic. The new law was effective immediately. Read Senate Bill 93 here.

Covered Employers

SB 93 applies to these employers:

  • Hotels: those with 50 or more guest rooms.
  • Event centers: publicly or privately owned structures of more than 50,000 square feet or 1,000 seats that are used for public performances, sporting events, business meetings, or similar events. Event centers include concert halls, stadiums, sports arenas, coliseums, and convention centers.
  • Building services: businesses that provide janitorial, building maintenance, or security services.
  • Private clubs: private, membership-based businesses or nonprofit organizations that operate building(s) with at least 50 guest rooms or suites that are offered as overnight lodging to members.
  • Airport hospitality operations: businesses that prepare, deliver, inspect, or provide services related to the preparation of food and beverages for aircraft crews or passengers at an airport, or that provide food, beverages, retail merchandise/consumer goods to the public at an airport.
  • Airport service provider: businesses at an airport that are directly related to the transportation of people, property, or mail. Such services include loading and unloading of property, ticketing and check-in functions, security, aircraft cleaning. and waste removal.

Definition of "Laid Off"

A "laid-off" employee is any worker who was employed by the business for six months or more in the 12 months preceding Jan. 1, 2020, and whose most recent employment separation from that employer was the result of the COVID-19 pandemic.

Notice of the Rehire Job Offer

A written job offer must be sent to the laid-off employee within five business days of establishing a position. That offer may be delivered by hand, U.S. mail at the employee's last known address, or by email or text message.

A laid-off employee is deemed qualified for the position if he or she held the same or similar position with the employer at the time of his or her layoff.

A laid-off employee has five business days to respond to the rehire offer. If multiple employees respond to the same offer, the employer must offer the position to the most senior employee (defined by the total period of time during which a worker has been employed by the business, from the beginning of her or his date of hire, including time taken on leave or vacation).

Although not specifically stated in the legislation, employers should send rehire letters to all employees who qualify as "laid off" and who previously held the position for which the employer is hiring. If multiple people respond to the job offer, the employer should rehire the employee with the most seniority, per the statute.

If the employer decides not to recall a laid-off employee for lack of qualifications, it must provide that person with written notice within 30 days explaining why he or she was not rehired, and include a list of all employees hired for the position, with their length of service.

Records Must Be Maintained

Employers must keep individual employee records for three years from the date of the original layoff. Records that must be maintained include the name, title, date of hire, last known address, last known email address and telephone number, and a copy of written notices regarding the layoff and all written communications following the layoff regarding offers of rehire.

Enforcement and Damages for Noncompliance

SB 93 will be enforced by California's Division of Labor Standards Enforcement (DLSE). Potential damages for noncompliance include hiring and reinstatement rights, front pay and back pay for each day the violation continues, value of the benefits the laid-off employee would have received absent the noncompliance, and interest on unpaid amounts due.

In addition, the DLSE will award civil penalties of $100 per each employee whose rights were found to have been violated, plus liquidated damages of $500 per employee for each day the rights of the employee were found to have been violated.

See Also

< California Resources — Unemployment and Disability Insurance, Paid Family Leave, Paid Sick Leave Table of Contents Federal and California Worker Adjustment and Retraining Notification Acts >

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