Publication

Recently, we published an overview of Senate Bill 95 ("SB 95") which created Supplemental Paid Sick Leave for California employees for COVID-19 related reasons.  Here, we provide a detailed overview of key provisions to help ensure compliance.

Eligibility

SB 95 created Labor Code section 248.2, which applies to private and public employers with more than 25 employees and requires payment of COVID-19 supplemental paid sick leave (“SPSL”) for covered employees who are unable to work or telework due to certain reasons related to COVID-19 (see Permissible Usage section below). There is no carve-out for temporary workers. Properly designated independent contractors, however, are excluded.  

Leave Entitlements/Calculation

The amount of hours as detailed below are available from January 1, 2021 to September 30, 2021.  As discussed below, employers can take a credit/offset for hours already paid for qualifying reasons in 2021.

Full-Time Employees

A covered employee is entitled to eighty (80) hours of COVID-19 SPSL, if the covered employee satisfies either of the following criteria:

1. Full-time employee: The employer considers the covered employee to work full time.
2. At least 40 hours per week: The covered employee worked or was scheduled to work, on average, at least forty (40) hours per week for the employer in the two weeks preceding the date of leave.

Part-time / Variable Schedule

An employee who does not satisfy the criteria above is entitled to an amount of COVID-19 SPSL as follows:

1. Set Weekly Schedule: If the employee has a normal weekly schedule, the employee may receive = total number of hours the employee is normally scheduled to work for the employer over two weeks (i.e., 14 days).
2. Variable Hours: If the employee works a variable number of hours, the employee may receive = 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took COVID-19 SPSL.

• Recent Hires (more than 14 days but less than 6 months): 14 times the average number of hours the employee worked each day over the entire period the employee has worked.
• New Hires (less than 14 days): the total number of hours the employee has worked.

Rate of Pay

Each hour of COVID-19 SPSL shall be compensated at a rate equal to the following for (1) exempt employees and (2) non-exempt employees.

Exempt Employees

COVID-19 SPSL for exempt employees should be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Non-exempt Employees

COVID-19 SPSL for non-exempt employees should be calculated by the highest of:

1. the regular rate of pay for the workweek in which the covered employee uses COVID-19 SPSL, whether or not the employee actually works overtime in that workweek;
2. dividing the employee’s total wages (not including overtime premium pay), by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
3. The state minimum wage.
4. The local minimum wage to which the employee is entitled.

When employees have schedules described in (2) “Variable Hours” for part-time workers/variable schedules, above, an employer may meet the requirement by doing an initial calculation of COVID-19 SPSL available and indicating “(variable)” next to that calculation. Note: this does not exempt an employer from providing an employee an updated calculation when an employee requests to use COVID-19 SPSL.

Maximum

The maximum payment is $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 SPSL taken by the covered employee unless federal legislation is enacted that increases these amounts. The covered employee may utilize other paid leave that may be available in order to receive what they would normally earn if the cap is reached.

Retroactive Payment

If the employer did not compensate the employee in an amount equal to or greater than the amount of compensation for COVID-19 SPSL to which the employee is entitled, then upon the oral or written request of the employee, the employer must provide the covered employee with a retroactive payment.  The number of hours of leave corresponding to the amount of the retroactive payment counts towards the total number of hours of COVID-19 SPSL that the employer is required to provide.  The payment shall be paid on or before the payday for the next full pay period after the oral or written request of the covered employee.

Notification on Pay Stub

By the next full pay period after March 29, 2021, the employer is required to show the available SPSL hours on an employee’s pay stub, separately from California PSL.  We recommend employers also create an SPSL pay code so that it is easy to later identify the SPSL hours paid as distinguished from regular pay or vacation pay, etc.

Permissible Usage

Employees are entitled to use COVID-19 SPSL if the employee is unable to work or telework and:

1. 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 (i.e. not a general stay at home order);
2. has been advised by a health care provider to self-quarantine;
3. is attending an appointment to receive a vaccine;
4. is experiencing symptoms related to a COVID-19 vaccine;
5. is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
6. is caring for a family member who 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 or has been advised to self-quarantine by a health care provider due to concerns related to COVID-19; or
7. 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.

Special Usage Rules

• The total number of hours of COVID-19 SPSL to which an employee is entitled shall be in addition to any paid sick leave that may be available. The employer may not require the use of other paid sick leave or vacation before an employee uses COVID-19 SPSL.
• An employee may determine how many hours of COVID-19 SPSL to use, up to the total number of hours to which the employee is entitled. The employer must make COVID-19 SPSL available for immediate use by the employee, upon the oral or written request of the employee. A covered employee can take COVID-19 SPSL if it begins prior to the expiration of this section. 
• When an employee is excluded by their employer as required by the Cal/OSHA Emergency Temporary Standards and is entitled to exclusion pay, an employer may require the use of 2021 COVID-19 Supplemental Paid Sick Leave before providing exclusion pay.

Credit / Offset Provision

Yes – but only for benefits after January 1, 2021. If an employer pays a covered employee another supplemental benefit for leave taken on or after January 1, 2021, that is payable for the reasons listed above, and that compensates the covered employee in an amount equal to or greater than the amount of compensation for COVID-19 SPSL to which the covered employee is entitled, then the employer may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 SPSL.

Notice Requirements

The Labor Commissioner created a model notice available on its website here. The employer may satisfy the notice requirement by posting the notice in a conspicuous place or disseminating through electronic means, such as by email.

Documentation

Employers should not deny or condition taking or payment of COVID-19 SPSL on documentation supporting the need for leave (such as a doctor’s order).  It may be reasonable in certain circumstances to ask for documentation before paying COVID-19 SPSL “when the employer has other information indicating that the covered employee is not requesting 2021 COVID-19 Supplemental Paid Sick leave for a valid purpose.  In any such claim, the reasonableness of the parties’ actions will undoubtedly come into play.”  Employers should consult with legal counsel before denying leave on suspicions of abuse by employees.

Tax Credit For FFCRA Eligible Employers

The American Rescue Plan ("ARP") amended the qualifying reasons under the Emergency Paid Sick Leave ("EPSL") portion of the FFCRA which expired on December 31, 2020. The ARP provides for covered employers who provide EPSL leave to take a payroll tax credit for qualifying wages. Thus, for employers with under 500 employees that pay SPSL hours paid for a qualifying reason that mirrors the EPSL reasons under the FFCRA as amended by the ARP, the employer can take the tax credit for those hours.