On March 19, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 95 which 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, such as vacation and non-COVID statutory sick leave.
The new law, which will be codified in Labor Code section 248.2, will apply to employers with 26 or more employees.
The total number of hours an employee can claim for COVID-19 supplemental paid sick leave benefits varies based on the employee’s work schedule:
Full-Time Employees: If the employee has a regular work schedule, then the employee’s COVID-19 supplemental paid sick leave equals the total number of hours they worked over the past two weeks up to a total of 80 hours.
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 receive 14 times the average number of hours they worked each day in the six months preceding their leave date. The calculation for an employee who has been employed less than six months is made over the entire period of employment.
Leave make be taken by employees who are “unable to work or telework” due to one of the following qualifying reasons:
Employers may not require employees to use other paid or unpaid leave before the use of the new SPSL or in lieu of SPSL.
The requirement for an employer to provide SPSL does not start until March 29, 2021 and expires September 30, 2021. However, an employee taking leave at the time the law expires will be permitted to take their full amount of leave.
It is important to note that while the law is effective March 29, 2021, the law’s provisions apply retroactively to January 1, 2021. This means that covered employees who took qualifying leave between January 1, 2021 and March 28, 2021, can make a written or oral request for payment for that leave if it was not paid by the employer in the amount that is required under this law.
For non-exempt employees, there are two calculation formulas and employers must pay the highest pay rate between the two. The first pay rate calculation is the employee’s regular rate of pay for the workweek that the sick leave is used, whether or not the employee actually works overtime in that workweek. The second formula is calculated by dividing the employee’s total wages (not including overtime) by their total hours worked in the full pay periods of the prior 90 days of employment. However, if the applicable state or local minimum wage is a greater than the rate produced by either of those methods, then employers must use that minimum wage amount as the SPSL rate.
For exempt employees, the method of determining the rate of pay is the same method used to determine wages for any other form of paid leave.
The maximum payable benefit is $511 per day or $5,110 in the aggregate.
If an employer paid supplemental sick leave benefits for any of the reasons covered under the new law between January 1, 2021 and March 29, 2021, the employer may credit this previously provided paid benefit toward the total amount of leave required under the new law.
Employers are required to provide notice of their rights to supplemental paid sick leave in a conspicuous place that contains information about the 2021 SPSL. If the employees do not frequent the workplace or telework, employers may disseminate the notice electronically. The required poster may be found HERE.
The COVID-19 supplemental paid sick leave must also be reflected on itemized wage statements and be set forth separately from regular paid sick days.
For variable-scheduled covered employees, employers are required to calculate the initial amount of SPSL available and put (variable) next to it on the itemized wage statement. However, this calculation on the wage statement would have to be updated any time an employee requests to use the leave or requests payroll records under Labor Code section 247.5.
In conclusion, it is imperative that employers gain a good understanding of the new supplemental paid sick leave obligations as it applies to them and comply with the notice requirements. Please contact our office for assistance in the implementation of the provisions of this law.
By: Rubina Andonian, March 25, 2021