On March 19, 2021, Governor Newsom signed Senate Bill 95 (SB 95), which renews and expands California’s COVID-19 related supplemental paid sick leave requirements that expired on December 31, 2020. The new legislation covers more employers and more qualifying reasons for taking leave than the previous legislation. Find out more about the updated paid sick leave requirements under SB 95 below.

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Expired Legislation

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Last September, the California legislature passed Assembly Bill 1867 to codify and extend the mandatory sick leave protections established in Executive Order (EO) N-51-20 and the federal Families First Coronavirus Response Act (FFCRA). Under these supplemental paid sick leave laws, which both expired on December 31, 2020, most California employers were required to provide their employees with up to 80 hours of paid leave for certain COVID-19 related reasons. Read more about the expired supplemental sick leave laws here.

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Provisions and Effective Time Period

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Beginning March 29, 2021, eligible “full-time” employees will be entitled to a new allotment of up to 80 hours of supplemental paid sick leave. “Part-time” employees with regularly scheduled hours will be eligible for supplemental paid sick leave up to the total amount of hours they are regularly scheduled to work in a two-week period. “Part-time” employees who work a variable number of hours are eligible for this leave up to 14 times the average number of hours the employee has worked each day in the preceding six months. Employees who have worked 14 or fewer days for the employer are eligible for sick leave amounting to the total number of hours they have worked for the employer.

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As an urgency statute, SB 95 took effect immediately upon Governor Newsom’s signature; however, the mandate to provide supplemental paid sick leave will not take effect until March 29, 2021, ten days after the bill’s enactment. While the leave requirements under this legislation will expire on September 30, 2021, an employee who is taking leave while the law expires is permitted to use their full amount of leave.

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Significantly, the law’s provisions also apply retroactively to January 1, 2021; upon the oral or written request of a qualifying employee, an employer will be required to compensate the employee for qualifying leave taken on or after January 1, 2021 if the employer did not already compensate the employee the required amount. These hours reimbursed retroactively would count towards the maximum amount of paid sick leave required by SB 95.

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Leave under the new legislation must be granted in addition to other available paid sick leave, and employees may not be required to use other leave in lieu of or before using SB 95’s leave. However, an “employer may require a covered employee to first exhaust their COVID-19 supplemental paid sick leave” under SB 95 before the employer is required “to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure under the Cal-OSHA COVID-19 Emergency Temporary Standards.” COVID-19 related paid sick leave already provided under any federal or local law that was in effect on or after January 1, 2021 may offset the total hours of additional leave the employer must provide under SB 95.

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Employers must pay their nonexempt employees at the highest of the following rates:

• The regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek;
• The rate calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
• The state minimum wage; or
• The local minimum wage to which the covered employee is entitled.

Exempt covered employees must be paid at the same rate that they normally receive for paid leave. Unless federal legislation is passed that increases the following limits, the new law also stipulates that employers are not required to pay more than $511 per day and $5,110 total to a covered employee for COVID-19 supplemental paid sick leave taken under SB 95.

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Eligibility and Notification Requirements

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Importantly, the bill’s provisions apply to employers with over 25 employees, unlike AB 1867 (California’s prior COVID-19 supplemental paid sick leave statute), which only covered employers with 500 or more employees. While smaller businesses that employ 25 or fewer workers are exempt from the legislation, they may still offer supplemental paid sick leave and, if eligible, receive a federal tax credit.

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The bill also allows employees to utilize paid leave when they are unable to work or telework, which means that employees who do not leave home for work will be eligible for paid leave under the statute.

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The legislation carries separate provisions for firefighters and In-Home Supportive Services (IHSS) workers.

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The new legislation carries over two of the three qualifying reasons for using SB 95’s supplemental COVID-19 paid sick leave from the previous legislation, including:

• The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. (If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.)
• The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

Additionally, SB 95 expands the covered reasons to include the following situations:

• The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19;
• The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
• The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• The covered employee is caring for a family member who is subject to a quarantine or isolation period, or who has been advised to self-quarantine; or
• The covered 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.

Employers will be required to notify qualifying employees of their remaining available leave balances on their wage statements or in separate documents. This wage statement obligation will not be enforceable until the first full pay period after the bill’s effective date on March 19, 2021. Within these notice statements, COVID-19 supplemental paid sick leave must be set forth separately from other paid sick days.

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Additionally, employers may meet the wage statement requirement for employees with variable schedules by doing an initial calculation of COVID-19 supplemental paid sick leave available and indicating “(variable)” next to that calculation. However, employers are obligated to update these calculations on the wage statement when employees request leave or request their payroll records under Labor Code Section 247.5.

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On March 22, 2021, the California Labor Commissioner issued a poster that covered employers must distribute to their employees, which details the covered reasons for leave and the amount of leave available for eligible employees under SB 95. Employers must display the poster in the workplace, and may satisfy the notice requirements for employees who do not regularly visit the workplace by distributing the notice by electronic means, such as email. While it is recommended that employers circulate and/or display the notice poster as soon as feasible, the bill does not require employers to do so until March 29, 2021.

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Resources for California Employers

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Find the full text of SB 95 here.

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Find the required notice poster issued by the California Labor Commissioner here.

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Find out more about California’s expired supplemental paid sick leave laws here.

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If you have questions regarding the application of SB 95 to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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