Today, the California legislature approved Senate Bill (“SB”) 95, which overhauls the State’s paid sick leave law by providing COVID-19 Supplemental Paid Sick Leave (“COVID-19 Supplemental PSL”).
The Bill expands the existing “Healthy Workplaces, Healthy Families Act of 2014,” which provides employees in California limited Paid Sick Leave benefits. The Bill is currently on its way to Governor Newsom, who is expected to sign it. You can read the text of SB 95 here.
Very important to note—the leave is retroactive to January 1, 2021. Once Governor Newsom signs the law, workers who took unpaid sick leave from January 1, 2021 through the present for one of the reasons listed below will be entitled to pay for that time. The retroactive pay should be included in the employee’s next paycheck after the law becomes effective (ten (10) days after it is signed by the Governor.) Recall that many employers were already compensating for some leave related to COVID-19 pursuant to the Cal/OSHA Emergency Temporary Standards (“ETS”), so in considering retroactivity, look for the additional reasons employees would be eligible for this COVID-19 Supplemental PSL that may not be covered in the ETS, outlined below.
More guidance is expected in the coming days and weeks, but a preliminary overview is provided here.
Which Employers Are Effected?
Employers with 25 or more employees are covered. Employees are eligible if they are unable to work or telework for an employer for an eligible reason.
When May An Employee Use the Leave?
COVID-19 Supplemental PSL is available for employees recovering from COVID-19 illness, subject to quarantine or isolation, seeking a vaccination, experiencing symptoms related to the COVID-19 vaccine that prevent the employee from being able to work, the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis, 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, or, the employee is caring for a child (regardless of age) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
How Much Leave Is Available?
Under SB 95, California full-time workers will be eligible for 80 hours of paid leave for the reasons listed above. Part-time workers and those with a variable schedule are entitled to a portion paid leave calculated based on a formula set out in the law.
My company is already continuing to provide FFCRA benefits—do I have to provide this additional leave?
If an employer is already providing COVID-19 leave (after January 1, 2021), then that leave counts towards this SB 95 COVID-19 Supplemental PSL. For example, for employers continuing to offer leave under the Families First Coronavirus Response Act (“FFCRA”) leave taken under that Act will run concurrently with SB 95 COVID-19 Supplemental Paid Leave so long as it is taken for the same “qualifying reason.” Reminder that the FFCRA tax credits were extended through September 30, 2021 for eligible employers—you can read more about that in our e-blast available here.
What about the Cal/OSHA ETS?
The Cal/OSHA Emergency Temporary Standards (“ETS”) require employers to continue paying earnings for employees who are excluded from work because they are sick with COVID-19 (a COVID-19 “case”) or due to an exposure—you can read more about the ETS here. SB 95 COVID-19 Supplemental Paid Leave allows employers to require use of this new COVID-19 Supplemental PSL when they are entitled to leave under the ETS. Meaning an employee may not elect to save up their COVID-19 Supplemental PSL when they are eligible to receive pay under the ETS.
However, an employer may not require covered employees to use any other paid or unpaid leave, paid time off, or vacation provided by the employer before the employee uses the COVID-19 Supplemental PSL.
Employers are not required to pay more than five hundred and eleven ($511) dollars per day and five thousand one hundred and ten dollars ($5,110) total to covered employees receiving this Supplemental PSL.
Wage Statement Requirements?
As with the Healthy Workplaces, Healthy Families Act of 2014, pursuant to this COVID-19 Supplemental PSL law, employer must include in the paystub BOTH regular Paid Sick Leave (“PSL”) and SEPARATELY the COVID-19 Supplemental Paid Sick Leave bank.
COUNSEL TO MANAGEMENT:
We expect more guidance in the coming days and weeks, along with a new poster from the State regarding this law to provide employees. If you have questions about implementation, contact the experts at The Saqui Law Group and be on the lookout for updates to follow!