California Reestablishes and Expands COVID-Related Supplemental Paid Sick Leave

In a long-forecasted move, on March 18, 2021, the California Legislature passed SB 95, reestablishing supplemental paid sick leave for COVID-19-related reasons. A day later, California Gov. Gavin Newsom signed the law, which takes effect on March 29, 2021. The law – similar to the statewide supplemental paid sick leave law that expired on Dec. 31, 2020 (see Holland & Knight's previous alert, "California Expands COVID-19-Related Paid Sick Leave in Emergency Budget Legislation," Sept. 16, 2020) – will require employers with more than 25 employees nationwide to provide up to 80 hours of supplemental paid sick leave to their California employees.

Qualifying Reasons

Under SB 95, employers of more than 25 employees will be required to provide supplemental paid sick leave to employees who are (bold text indicates qualifying reasons not provided for in the prior supplemental paid sick leave that expired at the end of 2020):

• subject to a COVID-19-related quarantine or isolation period per order or guideline of the State Department of Public Health, the Centers for Disease Control and Prevention (CDC) or local health officer who has jurisdiction over the workplace
• advised by a healthcare provider to self-quarantine due to concerns related to COVID-19
• attending an appointment to receive a COVID-19 vaccine
• experiencing symptoms related to a COVID-19 vaccine that prevent the employee from working or teleworking
• experiencing symptoms of COVID-19 and seeking a medical diagnosis
• caring for a family member who is subject to a COVID-19-related quarantine/isolation order or who has been advised by a healthcare provider to self-quarantine
• caring for a child whose school or place of care is closed or otherwise unavailable due to reasons related to COVID-19 on the premises

Amount of Leave

The amount of supplemental paid sick leave is determined by the employee's status as full-time or part-time employee.

• Full-time employees are entitled to 80 hours of supplemental paid sick leave, including those who work, on average, at least 40 hours per week in the two weeks preceding the date that COVID-19-related leave was needed.
• Part-time employees working a normal weekly schedule are entitled to supplemental paid sick leave in an amount equal to the number of hours scheduled to be worked over two weeks.
• Employees working a variable number of hours (part-time employees on a non-fixed weekly schedule) are entitled to supplemental paid sick leave equal to 14 times the average number of hours worked each day in the six months preceding the date that leave was required.

Maximum Monetary Benefit

Each hour of supplemental paid sick leave must be paid at the employee's regular rate of pay unless an alternate statutory calculation provides for a higher payment. The maximum payable benefit is $511 per day or $5,110 in the aggregate. These monetary caps will automatically increase if the federal government passes a federal supplemental paid sick leave bill that provides for payments at an amount in excess of the benefit payable under the now-expired Families First Coronavirus Response Act.

Setoff for Already-Provided Supplemental Paid Sick Leave

In recognition of the multitude of local jurisdictions in California that enacted supplemental paid sick ordinances, the California Legislature included a provision allowing a setoff in hours which must be provided under the new state law. If an employer paid supplemental sick leave benefits for any of the reasons covered under SB 95 between Jan. 1, 2021 and March 29, 2021, the employer is entitled to count the previously provided paid benefit towards the total benefit required under the new law. For example, an employer who provided a full-time employee 40 hours of supplemental paid sick leave in February 2021 pursuant to city or county ordinance can credit the already-provided 40 hours toward the new 80-hour obligation.

Retroactive Effective Date

Critically, the law is retroactive to Jan. 1, 2021. Therefore, employers should review any requests for unpaid leave of absence between Jan. 1, 2021 and March 29, 2021, to determine whether any such requested leaves of absence were taken for qualifying reasons under SB 95. If so, payment of supplemental paid sick leave will likely be required for the time spent on unpaid leave. Retroactive payment must be made on or before the payday for the next full pay period after the employee requests, orally or in writing, a retroactive payment for time off for qualifying reasons. Of course, any retroactively paid sick leave would count toward an employee's paid sick leave allotment under SB 95.

Conclusion and Considerations

SB 95 presents potential issues for compliance, particularly as the California Labor Commissioner's Office continues ramping up enforcement of paid sick leave laws and publishes new model notices specific to SB 95. Employers should ensure proper implementation of the new supplemental paid sick leave obligations and obtain advice on complying with the retroactive application of the leave requirements required under the law. For more information on how the new law could affect your organization, contact the authors.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

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Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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