On Friday, March 19, 2021, Governor Newson signed into law SB 95 (Skinner) enacting new COVID-19 supplemental paid sick leave benefits for eligible employees. The new bill amends the paid sick leave benefits in the Healthy Workplace Healthy Families Act (HWHFA) by adding new Labor Code sections 248.2 and 248.3.
The new law applies to employers with more than 25 employees. Covered employees eligible for COVID-19 supplemental paid sick leave are those unable to work or telework for the following reasons:
- The covered employee 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, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
- The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
- The covered employee is experiencing symptoms related to a COVID-19 vaccine.
- The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The covered employee is caring for a family member, who is subject to a quarantine or isolation order or who has been advised to self-quarantine.
- The covered employee is caring for a child, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
A covered employee who is unable to work or telework for one of the above reasons is entitled to 80 hours of COVID-19 supplemental paid sick leave, if the covered employee is either considered by the employer to be a full-time worker or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date of the COVID-19 supplemental paid sick leave.
Part-time employees are entitled to COVID-19 supplemental paid sick calculated in the following manner:
- If the covered employee has a normal weekly schedule, the employee is entitled to COVID-19 supplemental paid sick leave in an amount equal to the total number of hours the covered employee is normally scheduled to work for the employer over two weeks.
- If the covered employee works a variable number of hours, the covered employee is entitled to COVID-19 supplemental paid sick leave in an amount 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave.
- If the covered employee has worked for the employer for fewer than six months but more than 14 days, the same calculation is applied to the entire time the covered employee has worked for the employer.
- If the covered employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the covered employee is entitled to COVID-19 supplemental paid sick leave in an amount equal to the total number of hours the covered employee has worked for that employer.
The amount of COVID-19 supplemental paid sick leave available to a covered employee is in addition to the paid sick leave available under the HWHFA. A covered employee may determine how many hours of COVID-19 supplemental paid sick leave to use, up to the total number of hours to which the covered employee is entitled.
COVID-19 supplemental paid sick leave is compensated at the employee’s regular rate of pay. However, an employer shall not be required to pay COVID-19 supplemental paid leave benefits in an amount more than $511 per day and $5,110 in the aggregate, unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the federal Families First Coronavirus Response Act (FFCRA).
An employer may not require employees to use employer-provided paid leave benefits prior to receiving COVID-19 supplemental paid sick leave. However, if an employee has been excluded from the workplace because the employee has had a COVID-19 exposure as defined in the recently adopted Cal-OSHA regulations, the employer may require the employee to utilize COVID-19 supplemental paid sick leave as the means for compensating the employee while they are out of the workplace under the requirements of the Cal-OSHA regulations.
The bill takes effect March 29, 2021, ten days following its enactment, and at that point is retroactive to January 1, 2021. Payment of retroactive benefits to compensate employees who missed work for a qualifying reason during the period from January 1, 2021 to the effective date of the new law shall be paid on or before the payday for the next full pay period after an oral or written request of the covered employee. If an employer-provided paid leave benefits after January 1, 2021, but prior to the effect date of the new law, that were equal to or greater than COVID-19 supplemental paid sick leave, such benefits may be counted against the employer’s obligation to pay the COVID-19 supplemental paid sick leave.
The new law remains in effect until September 30, 2021, provided that an employee utilizing COVID-19 supplemental paid leave benefits at the time of the law expires is entitled to take the full amount of leave available to them even if that leave runs past the expiration date of the new law.
Finally, new Labor Code section 248.3 provides COVID-19 supplemental paid sick leave to providers of in-home supportive services that mirror the above requirements.
Questions
If you have any questions regarding the new COVID-19 supplemental paid sick leave law, please contact one of the lawyers in Kronick’s Labor and Employment Practice Group.
David Tyra
dtyra@kmtg.com | 916.321.4594