EMPLOYERS TO PROVIDE CALIFORNIA EMPLOYEES WITH COVID-19 PAID SICK LEAVE

Governor Newsom has signed SB 95 into law, which requires employers to provide California employees with paid sick leave in connection with COVID-19.

The law goes into effect immediately and is retroactive to January 1, 2021.  The law expires on September 30, 2021.

Below is a summary of the new law.  The state has also issued guidance.

Who is Covered?

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

What are Permissible Uses of Leave?

Employees are eligible for paid leave if they are unable to either (1) work or (2) telework for any of the following reasons:

  • They are subject to, or must care for a family member who 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, CDC, or a local health officer with jurisdiction over the workplace.
  • They have been advised by a health care provider to self-quarantine due to COVID-19-related concerns, or they need to care for a family member who has been so advised.
  • To attend an appointment to receive a COVID-19 vaccine.
  • They are experiencing symptoms after receiving the COVID-19 vaccine.
  • They are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • They are caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

How Much Leave Can an Employee Take?

Employees are entitled to 80 hours of paid sick leave if they were either considered full-time by their employer or if they worked (or were scheduled to work) an average of at least 40 hours per week in the two weeks prior to the date they started taking COVID-19 supplemental paid sick leave.

For other employees, the amount of leave will vary as follows:

  • Employees with a normal weekly schedule are entitled to an amount of leave equal to the total number of hours the employee is normally scheduled to work for that employer in a two-week period.
  • Employees with a variable weekly schedule are entitled to an amount of leave that varies by their length of service – 1) Those who have worked for the employer for 14 days or fewer are entitled to an amount of leave equal to the total number of hours they have worked for the employer; 2) Those who have worked for the employer for more than 14 days but less than six months are entitled to 14 times the average number of hours worked each day for the duration of their employment; 3) Those who have worked for the employer for at least six months are entitled to 14 times the average number of hours worked each day in the six months preceding the date they started taking leave.

What About Leave Taken Before March 29, 2021?

The law indicates that employees who took leave without pay between January 1, 2021 and March 29, 2021 are entitled to receive retroactive pay for that leave.  Per the Division of Labor Standards Enforcement’s Frequently Asked Questions (“DLSE’s FAQs”) retroactive pay is only required if an employee makes an oral or written request to be compensated, and if the employee’s absence was for a qualifying reason.  This retroactive pay must be provided on or before the payday for the next full pay period after the employee’s request, and it must be reflected on the wage statement for that pay period.  The DLSE’s FAQs state that if an employer paid an employee for leave taken for a qualifying reason, but at a rate that was less than what is required under the new law, the employer can voluntarily (i.e., in the absence of an employee’s oral or written request) make a retroactive payment to make up the difference between what was paid and what is required under law, and then adjust the employee’s COVID-19 supplemental paid sick leave balance accordingly.

What is the Rate of Pay?

Non-exempt employees must be paid at the highest of four possible rates:

  • The employee’s regular rate of pay for the workweek in which COVID-19 supplemental paid sick leave is used;
  • A rate calculated by taking the employee’s total wages, not including overtime premium pay, and dividing it by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
  • The state minimum wage; or
  • Any applicable local minimum wage.

For exempt employees, paid leave is calculated at the same rate that the employer uses to calculate wages for other forms of paid leave time.

Note that there is a maximum per-employee payment of $511 per day and $5,110 in the aggregate.

Is Requiring Advance Notice or Documentation Permissible?

The best practice is to not require advance notice or documentation.  Employers must make COVID-19 supplemental paid sick leave available for immediate use upon the employee’s oral or written request.  There is no provision in the new law addressing an employer’s right to request or require documentation.  The DLSE’s FAQs do state that “it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the covered employee is not requesting 2021 COVID-19 Supplemental Paid Sick leave for a valid purpose.”  In such an instance, the “reasonableness of the parties’ actions” should be assessed.  However, it is best practice to generally not institute documentation requirements.

Other Issues

  • The law requires employers to state employees’ COVID-19 supplemental paid sick leave balance on wage statements (similarly to standard paid sick leave).
  • The law is silent as to how employers should proceed in the case of any employee who took leave and used other forms of paid leave, such as paid sick leave, vacation, or PTO prior to March 29, 2021. Best practice would be to reinstate those hours, with the hours deducted instead from the employee’s COVID-19 supplemental paid sick leave balance.
  • Please take the time to print out and display the state’s model notice in the workplace. Or, for employees working remotely, provide employees with an electronic copy of the notice.
ERICA M. SOROSKY
[email protected]
(949) 851-7271
ERIN K. OYAMA
[email protected]
(949) 851-7288