On March 19, California reenacted and expanded supplemental paid sick leave for covered absences related to COVID-19 through Senate Bill 95 (“SB 95”). SB 95 contains a 10-day grace period for employers to start providing the leave. In addition to its immediate effect, the law applies retroactively to January 1, 2021, meaning that employers may need to issue payments to employees who took qualifying absences in the past. Unlike past California supplemental COVID-19 leave laws, SB 95 applies to all employers with 25 or more employees and provides for additional qualifying reasons for the absences.
What qualifies for the leave?
SB 95 not only mandates paid leave for COVID-19 related illness but further requires leave for vaccine-related absences and childcare. SB 95 provides that employees are entitled to leave for the following reasons:
- Quarantine or Isolation Order: The employee is subject to a quarantine or isolation order issued by the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer (if multiple orders apply, employees may use the order with the longest quarantine or isolation periods, following its minimum period);
- Self-Quarantine: The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Vaccine Appointment: The employee is attending an appointment to receive a vaccine to provide protection against COVID-19;
- Vaccine Reaction: The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
- Symptomatic: The employee is experiencing symptoms associated with COVID-19 and is seeking medical diagnosis;
- Family Leave: The employee is caring for a covered family member who is ordered to isolate or quarantine, or who was advised by a medical provider to self-quarantine; or
- School Closure: The employee is caring for a covered child whose school or place of care is closed or otherwise unavailability for reasons related to COVID-19 on the premises.
How much leave must an employer provide?
The amount of leave an employer must provide depends on whether the employee is full-time, part-time, or if the employee has a schedule that varies:
- Full-time employees (and those who worked or were scheduled to work an average of 40 hours or more in the two weeks prior to the leave) are entitled to up to a maximum of 80 hours of paid leave;
- Part-time employees are entitled to a maximum of the number of hours they are regularly scheduled to work over two weeks;
- Variable Schedule employees are entitled to leave as follows:
- If the employee worked for the employer for more than six months: 14 times the average number of hours the employee worked for each day for the six months preceding the leave;
- If the employee worked between 14 days and six months: 14 times the average number of hours the employee worked for the period they worked for the employer; or
- If the employee worked fewer than 14 days for the employer: the total number of hours the employee worked for the employer.
The amount of leave required is limited by the number of hours required for qualifying reasons set forth above. For example, if an employee cannot work for three (3) hours in order to get a COVID-19 vaccine, the employee can only claim three (3) hours of qualified leave, not the full eighty (80) hours.
What rate of pay does an employer need to pay?
Employees are entitled to the higher of (1) their regular rate of pay, (2) their rate based on taking their total earnings over the last 90 days (minus overtime) divided by their total hours worked in the last 90 days, or (3) minimum wage under state or applicable local laws.
The paid leave is currently capped at no more than $511 per day and $5,110 in the aggregate.
How does the retroactive application of the law work?
Upon oral or written request by a qualifying employee, an employer must provide retroactive payments to employees who took qualifying absences unpaid from January 1, 2021 to March 19, 2021. The retroactive payment must be applied on the next full pay period following the employee’s request for leave.
What if an employer already provides supplemental leave?
The mandated leave is in addition to paid sick leave required under California’s prior paid sick leave law (Labor Code 246). If, however, an employer provided supplemental leave for the covered reasons set forth in the law, at the amount required by this law, the hours provided may count towards those required by SB 95.
Must an employer provide notice?
Yes, SB 95 requires employers to provide notice to employees of their eligibility. The Labor Commissioner is to issue a model notice for employers to use within seven (7) days of the law’s enactment.
In addition to initial notice, the employer must also include supplemental COVID-9 sick leave as a separate line item on the itemized wage statement described in Labor Code Section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages.
When does this law expire?
SB 95 expires September 30, 2021. If an employee begins leave on or before September 30, 2021, the employee is permitted to take the full amount of leave otherwise permitted under the law.
