California Legislature Passes SB 95, Providing Supplemental Paid Sick Leave for COVID-19

On March 18, 2021, the California Legislature passed SB 95, which reestablishes and expands supplemental paid sick leave for reasons related to COVID-19. Below is a summary of this new statute.

As most of us know, the requirement to provide sick time expired under the federal Families First Coronavirus Response Act (FFCRA) on December 31, 2020. Additionally, AB 1867 was enacted to provide sick time to many of those who were not covered by the FFCRA. AB 1867 also expired on December 31, 2020. As such, SB 95 has been implemented, which reinstates this requirement in many cases retroactively to January 1, 2021, without extending the prior legislation.

Rather, SB 95 provides a new bank of paid sick leave. The result is that even if employers paid COVID-specific sick leave in 2020, there is a new obligation under this statute for 2021.

This applies to employers with greater than 25 employees, and it covers employees who are unable to work or telework because of a variety of COVID-specific reasons, not necessarily an employee who tests positive for COVID-19. There is no minimum length of employment requirement for the statute to apply.

The request can be made orally or in writing.

The employer is required to provide paid sick leave to each employee who is unable to work or telework due to any of the following reasons:

1. The employee is subject to quarantine or isolation related to COVID-19. Note that Cal/OSHA (8 CCR§3205) requires exclusion from the workplace for 14 days if an employee has been exposed to a COVID-19 positive person. Also, if the employee is COVID-19 positive, they cannot return to work until 24 hours have passed since a fever of 100.4 or higher has resolved, COVID-19 symptoms have improved, and at least 10 days have passed since COVID-19 symptoms first appeared. And, if the employee tested positive for COVID-19, but was symptom-free, 10 days must pass from the date of the specimen collection without symptoms.

2. The employee is advised by a health care provider to self-quarantine due to concerns related to COVID-19.

3. The employee is attending an appointment for a COVID-19 vaccine.

4. The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from working.

5. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

6. The employee is caring for a family member subject to an order to quarantine or isolate.

7. The employee is caring for a child whose school or place of care is closed or otherwise unavailable due to reasons related to COVID-19.

Employees who are “full-time.” That is, the employee is classified by the employer as full-time or has worked at least 40 hours a week in the previous two weeks prior to the application of the sick leave.

Employees not considered full-time are entitled to paid sick leave based on the employee’s schedule and length of employment. This is determined as follows:

1. If the employee has a normal weekly schedule, the total number of hours the employee worked over the previous two weeks is used.

2. If the employee has a variable schedule, 14 times the average number of hours worked each day in the previous six months is used.

3. If the employee with a variable schedule was not employed for six months, but has worked more than 14 days, the calculation is made on the total amount of time worked.

4. If the employee with a variable schedule was not employed for 14 days, the employee is entitled to the total number of hours worked.

Non-exempt employees are entitled to the highest of the following:

1. The same manner as the regular rate of pay for the workweek in which the employee uses COVID-19 leave.

2. Divide the total wages (not including overtime) by the total hours worked in the full pay periods of the prior 90 days of employment.

3. State minimum wage.

4. Local minimum wage.

Paid leave for exempt employees is to be calculated in the same manner as the employer calculates wage for other forms of paid leave, which is capped at $511.00 per day and $5,110.00 in the aggregate.

SRTK will continue to monitor these developments. As always, please contact us with any questions about what these changes may mean for you.