By: Dorothy Cociu, RHU, REBC, GBA, RPA, LPRT, CAHU Vice President, Communications
Published in the May-June, 2021 issue of The STATEMent | Read the article online
In the latest of California state COVID-19 legislation, SB 95 goes into effect 10 days after it was signed on March 19, 2021, and applies retroactively to January 1, 2021 and will remain in place through September 30, 2021. This legislation provides COVID-19 related supplemental sick leave to those who are unable to work or telework due to COVID-19, and it applies to employers (public and private) with more than 25 employees, and who are unable to work or telework due to a qualifying reason.
Qualified leave can be granted for the following reasons:
- The employee is subject to a quarantine or isolation period, defined by the state Department of Health, the CDC, or local health officer (this excludes a general stay-at-home order)
- The employee has been advised by a health care provider to self-quarantine
- The employee is attending an appointment to receive a COVID-19 vaccine
- The employee is experiencing COVID-19 vaccine symptoms that prevent him or her from working or teleworking
- The employee is experiencing COVID-19 symptoms and is seeking a diagnosis
- The employee is caring for a family member (as defined by regular sick leave laws) who is subject to a quarantine requirement or self-quarantine as advised by a health care provider
- The employee is caring for a child whose school or place of care is closed due to COVID-19 on the premises
This supplemental legislation establishes requirements for full-time employees to be entitled to up to 80 hours of paid sick time, and up to 2 weeks for those who are part-time or work variable hours, based on what they would normally have worked over a two-week period (see below). The total number of hours is in addition to hours allowed under Healthy Workplaces and Healthy Families Act of 2014. It basically resets the supplemental sick leave bank that was previously provided under AB 1867 in California and FFCRA, which expired on December 31, 2020.
Variable hour workers are entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee worked for their employer for less than six months but more than 14 days, the calculation is based on the entire time the employee worked for the employer.
SB 95 leave is in addition to any paid sick leave regularly available to the employee. The employer must provide written notice to employee of the amount of the COVID-19 supplemental sick leave they have available to use. Similar to AB 1867 and FFCRA, the employer cannot require an employee to use other paid or unpaid leave, including paid time off or vacation time, before or in lieu of using their SB 95 leave.
For leaves taken on or after January 1, 2021, for which the SB 95 would now apply, the employee must request retroactive payment orally or in writing. Payment in response to such request is due on or before the payday for the next full pay period after the request was made.
There are specific rules for firefighters. If a covered employee who is a firefighter was scheduled to work more than 80 hours for the employer in the two weeks prior to the need for leave, the employee is entitled to an amount of COVID-19 supplemental paid sick leave equal to the total number of hours the employee was scheduled to work in those two preceding weeks. They are still subject to the same daily and total aggregate caps of other employees, however.
Nonexempt employees are paid at the higher of rate of pay (using a formula) or minimum wage; exempt employees are paid in their usual manner for paid leave, with limits of $5,110 in the aggregate, or $511 per day.
Affected California employers must post a notice of the COVID-19 supplemental paid sick leave provided under SB 95 in a conspicuous place in the workplace. If employees do not frequent the workplace, the employer must satisfy the notice requirement through electronic means, such as email.
Enforcement is tasked to the California Labor Commissioner.
Like other leave laws, SB-95 includes a notice and paystub requirement.
The California Department of Industrial Relations released a required poster and provided FAQs, which can be found at: Poster: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf and FAQs: https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html . New toolkit at: https://www.dir.ca.gov/dlse/covid-psl/
