California’s New COVID-19 Additional Paid Sick Leave – Senate Bill 95 – Employment and HR

On March 19, 2021, Governor Newsom signed Senate Bill 95 which requires covered employers to provide a new bank of additional paid sick leave for certain COVID-19 reasons. This bill comes into force 10 days after its promulgation, on March 29, 2021, and will expire on September 30, 2021.1. This bill is broader in many ways than Assembly Bill 1867, which was the California version of the Families First Coronavirus Response Act (“FFCRA”) and which expired on December 31, 2020. The Senate Bill 95 covers more employers and provides employees with more reasons. to qualify for additional paid sick leave, and may require employers to pay retroactive compensation to employees who have taken unpaid leave for qualifying reasons as of January 1, 2021.

Senate Bill 95 applies to employers with more than 25 employees, a drastic extension of the now expired Assembly Bill 1867 which only applied to large employers with 500 or more employees. Senate Bill 95 adds two new sections to the California Labor Code. Article 248.2 of the Labor Code provides for additional paid sick leave to “covered employees[s]”who are” unable to work or telework for an employer “for specific reasons related to COVID-19. In addition, the bill adds section 248.3 of the Labor Code to provide additional paid sick leave to providers Home Support Services For the purposes of this Legal Alert, highlighted below are the provisions applicable to covered employees unable to work or telecommute for qualifying reasons related to COVID-19.2

Amount of additional paid sick leave

Senate Bill 95 creates a new bank of leave that an employer must make available at the oral or written request of a covered employee. Senate Bill 95 provides for the following amount of COVID-19 additional paid sick leave:

  • Full-time workers, or those who must work an average of at least 40 hours per week in the two weeks preceding their leave, are entitled to 80 hours of additional paid sick leave.
  • Part-time workers are entitled to leave, the amount of which varies according to the hours worked. If the employee has a regular weekly schedule, he or she is entitled to the total number of hours that the covered employee is normally required to work for the Employer over two weeks. If the employee works a variable number of hours, he or she is entitled to 14 times the average number of hours the covered employee worked each day for the Employer during the six months preceding the date the employee took additional paid COVID-19 sick leave. If the employee worked for the employer for a period of less than six months but more than 14 days, the amount of remuneration is instead calculated over the entire period during which the employee worked for the employer. Finally, if the employee works a variable number of hours and has worked for the employer for a period of 14 days or less, he is entitled to the total number of hours that the employee has worked for that employer.

Grounds for entitlement to additional paid sick leave

Senate Bill 95 provides for several reasons for additional paid sick leave that differ from Assembly Bill 1867, but which are similar to the recent expansion of FFCRA from Congress under the ‘American Rescue Plan Act of 2021 (“ARPA”). Now, a covered employee who is unable to work or telecommute is entitled to additional paid COVID-19 sick leave if:

  • The employee is subject to a period of quarantine or isolation
  • Employee Advised By Health Care Provider To Self-Quarantine Due To COVID-19 Concerns
  • Employee shows up for appointment to receive vaccine to protect against COVID-19
  • Employee exhibits symptoms related to COVID-19 vaccine that prevent employee from being able to work or telecommute
  • Employee shows symptoms of COVID-19 and seeks medical diagnosis
  • Employee is caring for a family member who is under quarantine or isolation or who has been advised to self-quarantine
  • 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

Pay rates for additional paid sick leave

For exempt employees, additional paid sick leave should be calculated in the same way that the employer calculates wages for other forms of paid leave. For non-exempt employees, additional paid sick leave must be paid at the greater of the following amounts:

  • A rate calculated in the same manner as the regular rate of pay for the work week in which the covered employee uses COVID-19 additional paid sick leave, whether or not the employee works overtime during the shift. this working week
  • A rate calculated by dividing the covered employee’s total wages, excluding the overtime premium, by the total number of hours worked by the employee during the full 90-day pay periods. previous jobs.
  • State minimum wage
  • The local minimum wage to which the covered employee is entitled

Retroactive pay

To “protect the economic well-being of covered employees who have taken time off” for qualifying COVID-19 reasons as of January 1, 2021, obligations to provide additional paid sick leave will apply retroactively to January 1, 2021. January 2021.

Upon request, oral or written, employers must provide retroactive compensation for any leave without pay (or unpaid leave “equal to or greater” than the amount of compensation required) taken on or after January 1, 2021 for any of the qualifying reasons. These retroactive payments will count towards the total allowances that employers are required to provide and must be paid on or before pay day for the next full pay period following the employee’s request. This payment must also be reflected in that employee’s pay stub for that pay period.

Salary notification and declaration requirements

Employers are required to notify employees of these new additional leaves. To help with this requirement, the labor commissioner was tasked with issuing model notices within seven days of enactment.

Additionally, the additional paid COVID-19 sick leave available must be reflected on employee payslips. The notice of additional paid COVID-19 sick leave available should be provided on a separate line from regularly available sick pay. Special instructions have been provided for pay slips for part-time employees.

These salary reporting requirements are not applicable until the next full pay period following promulgation.

Interactions with other sheets and laws

Other leaves

Senate Bill 95 provides that the total amount of COVID-19 additional paid sick leave to which an employee is entitled is more regularly paid sick leave. Additionally, employers are prohibited from requiring employees to use any other unpaid or paid leave, power take-off or vacation before the employee can use additional paid COVID-19 sick leave or in lieu of the leave. sickness pay extra COVID-19.

FFCRA, ARPA and other local ordinances

Employers who already voluntarily provide additional paid COVID-19 sick leave under the FFCRA or under a local ordinance may get lucky. An employer may credit other additional paid leave provided to an employee since January 1, 2021 for the same eligibility reasons, towards COVID-19 additional paid leave in certain circumstances. Again, paid sick leave regularly provided under section 246 of the Labor Code and additional paid sick leave under Assembly Bill 1867 cannot be credited for the leave. paid extra COVID-19.

Cal-OSHA

In November, Cal-OSHA passed certain emergency standards that require employers to maintain an employee’s earnings when an employee is kicked out of the workplace due to COVID-19, subject to certain exceptions. Under Senate Bill 95, an employer can require employees to first exhaust additional paid sick leave COVID-19 “in order to meet the requirement to maintain an employee’s earnings when an employee is excluded from the workplace due to exposure to COVID-19 under the -OSHA Act. “

Final thoughts

Many questions remain. How will these provisions affect former employees who may have taken unpaid leave for one of the qualifying reasons but who ended their employment relationship before March 29, 2021? What are the obligations of an employer towards these former employees? How should employers confirm that unpaid leave has been taken for one of the prohibited eligibility grounds?

The advice of the labor commissioner will be invaluable as employers seek to implement these new provisions. See it COVID-19 Additional Sick Leave FAQs issued by the labor commissioner.

Footnotes

1 The full text of SB 95 is available here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB95

2 This legal alert does not deal with the specific rules for firefighters nor with the provisions of article 248.3 of the Labor Code, applicable to home help services.

Originally published March 24, 2021

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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