On March 19, 2021, Governor Newsom signed legislation, effective immediately, that requires employers with 26 or more employees to provide up to 80 hours of COVID-19 supplemental paid sick leave for eligible employees. Small businesses employing 25 or fewer workers are exempt from the new Labor Code sections 248.2 and 248.3 created by SB95, but they can still offer supplemental paid sick leave and receive a federal tax credit, if eligible.

The Department of Labor Standards Enforcement has issued expanded FAQs regarding COVID-19 supplemental paid sick leave, which California employers with 26 or more employees are encouraged to carefully review. This information is available at 2021 COVID-19 Supplemental Paid Sick Leave FAQs . The following highlights some of the most important points of the new law. We encourage you to work with your employment counsel to answer questions specific to your workplace.

Is COVID-19 Supplemental Paid Sick Leave in Addition to Paid Sick Leave Already Taken Under the Healthy Workplaces, Healthy Families Act of 2014?

Yes. The total number of hours of COVID-19 supplemental paid sick leave that an eligible employee is entitled to is in addition to any paid sick leave otherwise available under Labor Code section 246.

When Does the Requirement for COVID-19 Supplemental Paid Sick Leave Begin and End?

SB 95 applies retroactively to sick leave taken beginning January 1, 2021 and it is effective until September 20, 2021. The obligation to pay retroactively is triggered by the employee’s oral or written request.

Which Employees are Eligible for COVID-19 Supplemental Paid Sick Leave?

A “covered employee” means “an employee who is unable to work or telework for an employer” because of specified reasons related to COVID-19, including the employee’s own illness, need to quarantine, vaccine appointment or experiencing symptoms as well as the employee needing to care for a family member being quarantined or suffering from COVID-19 or who needs to care for children who are at home for reasons related to COVID-19.

Both full-time and part-time employees are eligible for COVID-19 supplemental paid sick leave and it does not matter whether the employee had a regular schedule or a variable schedule.

What Can the COVID-19 Supplemental Paid Sick Leave Be Used For?

The supplemental paid sick leave can be used for:

• The employees’ own illness due to COVID-19 or such illness of a child, parent/legal guardian, spouse/registered domestic partner, grandparent, grandchild, or sibling;
• If the employee has been advised by the employee’s health care provider to quarantine due to concerns related to COVID-19;
• If the employee needs to miss work to get vaccinated for protection against COVID-19;
• If the employee experiences symptoms after receiving the vaccine that prevent the employee from being able to work or telework.

How is COVID-19 Supplemental Paid Sick Leave Calculated?

Nonexempt employees are to be paid the employee’s regular rate of pay for the pay period in which the leave is taken, the state minimum wage, or the local minimum wage, whichever is highest. The amount of COVID-19 supplemental paid sick leave is currently capped at $511 per day and $5,110 in the aggregate, but those amounts may change depending on federal developments.

Can an Employer Require the Employee to Take Other Forms of Leave Before Taking COVID-19 Supplemental Paid Sick Leave?

No. Employers may not require the employee to use other paid or unpaid leave, paid time off, or vacation time provided by the employer before that employee uses COVID-19 supplemental paid sick leave or instead of using the supplemental paid sick leave.

Does the Employer Have to Give Employees Notice of COVID-19 Supplemental Paid Sick Leave?

Yes. The Labor Commissioner has released the required poster that must be posted in the workplace, which can be found at the following link: 2021 COVID-19 Supplemental Paid Sick Leave. For employees who are not physically working in the workplace, employers may provide the notice electronically.

What Records Must the Employer Keep Relating to COVID-19 Supplemental Paid Sick Leave?

COVID-19 supplemental paid sick leave must be tracked separately from paid sick days, and it must be included on a written notice setting forth available paid sick leave or PTO. The written notice can be the wage statement or a separate writing. If an employer provides unlimited paid sick leave, noting “unlimited” as the amount available satisfies this requirement.

Are There Any Other Requirements Tied to This Bill?

Yes. There are different calculations regarding COVID-19 supplemental paid sick leave for certain firefighters and for covered employees working fewer or variable hours, as specified. The bill also creates Labor Code section 248.3, which governs COVID-19 supplemental paid sick leave for specified in-home supportive service providers and personal waiver care service providers. If these may impact you, contact your legal counsel for additional information.

Where Can Employers Find More Information?

Before acting on any of the information presented in this article, employers should consult with their legal counsel. The above information is provided for educational use and is not to be considered legal advice for anyone’s specific situation. Jenny Shin is an attorney licensed to practice in the State of California who practices through JDS Law, Inc., a professional law corporation located in Temecula, California. Additional resources are available on the State of California’s website. You can also contact our law office with further questions or for help understanding how the new law applies to your situation.