[UPDATE: The California Labor Commissioner updated its FAQs in April to provide further clarification as to when employees may use COVID-19 supplemental paid sick leave (COVID-19 SPSL). Highlights from the updated guidance include:
- For employees to receive COVID-19 SPSL due to daycare closures, the closure must have been a total or partial closure that occurred on or after January 1, 2021, and rendered the care unavailable, because of COVID-19 on the premises.
- An employee may receive COVID-19 SPSL if they are caring for a family member either because the family member has been advised by a medical professional to stay home due to COVID-19, or the family member is subject to a COVID-19 related quarantine or isolation period.
- Employers must provide COVID-19 SPSL immediately upon the eligible employee’s oral or written request.]
On March 19, 2021 Governor Newsom signed into law SB 95 (adding sections 248.2 and 248.3 to the Labor Code), which requires employers to pay California employees up to two weeks of COVID-19 supplemental paid sick leave (COVID-19 SPSL).
This new law revives and expands the supplemental paid sick leave law that expired on December 31, 2020. As a result of these changes from the prior iteration of California’s Supplemental Paid Sick Leave law, many more California employers will be required to provide, and many more employees will be eligible for, COVID-19 SPSL.
Who does the new law apply to?
Whereas the previous law only applied to employers with 500 or more employees, the new law applies to employers who have 26 or more employees. Additionally, individuals who are unable to work or telework will be covered by this law.
What reasons can COVID-19 SPSL be used for?
The law also expands the qualifying reasons and persons for whom the paid sick leave may be used where an employee cannot work or telework for any of the following reasons:
- the employee is subject to, or is caring for a family member who is subject to a quarantine or isolation period related to COVID-19;
- the employee has been advised by a healthcare provider to quarantine due to COVID-19;
- the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises; or
- the employee is attending a vaccine appointment, or having vaccine-related symptoms.
How much COVID-19 SPSL must be provided?
Under the law, full-time employees are entitled to up to 80 hours of paid leave. Part-time employees who work regular schedules will be entitled to the total number of hours they typically work in a two-week period. Part-time employees with varying schedules are entitled to Supplemental Paid Sick Leave based on one of the two following calculations:
- For employees that worked for more than 14 days – the employer should first take the total number of hours worked by the employee in the preceding 6 months, divide that by the total number of days the employee was employed in the preceding 6 months, and then multiply that number by 14.
- For employees that have worked 14 days or less – the total number of hours the employee has worked in the preceding 14 days.
It should be noted that the COVID-19 SPSL is a new “bank” of paid sick leave. So for employers with 500+ employees that previously provided paid COVID-19 sick leave under the prior law are nevertheless required to provide the amounts set forth above.
What rate must COVID-19 SPSL be paid?
COVID-19 SPSL must be paid at the highest of the following: (1) the employee’s regular rate of pay for the workweek in which leave is taken; (2) a rate calculated by dividing the 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; (3) the state minimum wage; or (4) the local minimum wage.
Similar to the Families First Coronavirus Response Act (FFCRA), an employer shall not be required to pay more than $511 per day and $5,110 total for COVID-19 SPSL, unless federal legislation is enacted such that the amounts set forth in the FFCRA for Emergency Paid Sick Leave are also increased.
Employers will need to identify the amount of COVID-19 SPSL on itemized wage statements, and this amount should be listed separate from other paid sick leave the employee may have available. For employees on variable work schedules, employers would need to calculate the amount of COVID-19 SPSL available and put “(variable)” next to the amount on the itemized wage statement.
Employers are also required to display the required poster in a conspicuous place or, for covered employees that do not frequent a workplace, employers may disseminate notice through electronic means.
When does COVID-19 SPSL go into effect?
The law went into effect immediately, although the requirement to provide the COVID-19 SPSL did not begin until March 29, 2021. However, it is important to note that the new law applies retroactively to January 1, 2021. This means, from a practical perspective, employers may be required to make back payments to individuals who previously took leave for reasons that would have been covered under the new law during the period between January 1, 2021 through March 28, 2021. The new law is set to expire September 30, 2021.
For more information regarding COVID-19 SPSL requirements applicable to your workplace, including how COVID-19 SPSL interacts with other leaves/ordinances, contact an author of this blog post or the Hogan Lovells lawyer with whom you regularly work.
*An author of this post, Shannon Finnegan, is a Law Clerk in the New York Office.