On Thursday, March 18, the California legislature passed SB-95 that requires many employers to provide COVID-19 supplemental paid sick leave to their California employees.  Governor Gavin Newsom is expected to sign the bill into law almost immediately, and it will go into effect 10 days later.  Here’s what you need to know.

Applicability

• SB-95 applies to employers with 25 or more employees, at least one of whom works in California.
• Eligible employees are those in California who are unable to work or telework for one of the defined reasons.

Reasons for Leave

• An employee may take leave if he or she is unable to work for any of the following reasons:
  • The employee is subject to a quarantine or isolation period related to COVID-19. “Quarantine or isolation periods” are those defined by the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace.
  • The employee was 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 COVID-19 vaccine.
  • The employee is experiencing symptoms related to the COVID-19 vaccine that prevent him or her from working or teleworking.
  • 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.
  • 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.

Amount of Leave

• Full time employees and employees who are scheduled to work, on average, at least 40 hours per week for the employer in the two weeks before the date the employee took supplemental paid sick leave: 80 hours.
• Part time (or non-full time) employees:
  • If the employee has a normal weekly schedule: the number of hours the employee is normally scheduled to work for the employer over two weeks.
  • If the employee works a variable number of hours: 14 times the average number of house the employee worked each day for the employer in the six months before the first date the employee needed leave.
• The total number of hours of supplemental paid sick leave is in addition to any paid sick leave to which the employee is entitled under California law.
• Employees may use their supplemental paid sick leave immediately.
• Employers may not require employees to use other forms of paid time off before supplemental paid sick leave.

Rate of Pay

• Non-exempt employees: Each hour of supplemental paid sick leave is paid at the highest of the following rates:
  • The employee’s regular rate of pay for the workweek in which he or she uses supplemental paid sick leave.
  • The employee’s total wages (not including overtime) divided by the employee’s total hours worked in the full pay periods of the employee’s last 90 days of employment.
  • The state minimum wage (currently $14/hour for employers with 26 or more employees).
  • The local minimum wage to which the employee is entitled.
• Exempt employees: Supplemental paid sick leave is paid the same way that the employer calculates other forms of paid leave.
• Supplemental paid sick leave is capped at $511 per day and $5,110 total. Employees may choose to use other paid leave to supplement supplemental paid sick leave and earn their full compensation during their leave.

Interaction with Other Leaves

SB-95’s supplemental paid sick leave runs concurrently with other forms of COVID-19 paid leave if these conditions are met:

• The employee took COVID-19 specific supplemental paid sick leave on or after January 1, 2021 (g., FFCRA emergency paid sick leave);
• The leave was for one of the reasons covered by SB-95 (see above);
• The leave was paid at the same or higher rate than leave covered by SB-95.

If these conditions are met, employers may apply supplemental paid leave and the other COVID-19 specific leave concurrently.  This applies even if the employee took the COVID-19 specific leave before SB-95 went into effect.

Retroactivity

Supplemental paid sick leave is retroactive to January 1, 2021.  Here’s what that means:

• If an employee took leave on or after January 1, 2021 that would have qualified for SB-95 supplemental paid sick leave, and the employer did not pay the employee for that leave (or did not pay the employee at the level required by SB-95), then, upon the written or oral request of the employee, the employer must provide the employee with a retroactive payment of supplemental paid sick leave.
• The number of retroactively-paid hours count against the employee’s supplemental paid sick leave bank.
• The employer must pay the retroactive payment on or before the payday for the next full pay period after the employee makes the oral or written request.

Notice and Documentation Requirements

Employers are required to provide notice of employees’ rights to supplemental paid sick leave.  The Labor Commissioner must produce a model notice seven days after the law goes into effect.

SB-95 also requires employers to include the amount of supplemental paid sick leave available to the employee, listed separately from paid sick days, on his or her itemized wage statements.  For employees who work part-time or variable schedules, the employer may calculate the initial amount of supplemental paid sick leave available and indicate “(variable)” next to the calculation.  The employer must provide the employee with an updated calculation upon the employee’s request or when the employee uses supplemental paid sick leave.

Expiration

The law expires on September 30, 2021.  Employees who are taking leave at the time the law expires are allowed to take their full amount of leave.

SB-95 imposes significant requirements on employers and requires your immediate attention.  If you have questions, please contact Matt O’Rourke or a member of Miller Johnson’s National Employment Law Compliance practice group.