SB 95 – Resurrection of Supplemental Paid Sick Leave for COVID-19
- By: Gretchen Dugan
Governor Gavin Newsom signed SB 95 on March 19, 2021. SB 95 requires California private and public employers with 25 employees or more to provide “Supplemental Paid Sick Leave” for qualifying leave events between January 1, 2021 and September 30, 2021.
SB95 became effective on March 29, 2021, and is retroactive to January 1, 2021. This means that employees can request payment for qualifying COVD-19 related leave if it was not paid by the employer in the amount that is required under this new law.
Reasons for Leave
Employees are entitled to take leave if the employee is unable to work or telework for any of the following reasons:
- Employee is subject to quarantine or isolation related to COVID-19.
- Employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
- Employee is attending an appointment to receive a COVID-19 vaccine for protection against COVID-19.
- Employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.
- Employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis.
- Employee is caring for a family member who is subject to a quarantine or isolation order or 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.
Amount of Leave
The amount of sick leave authorized depends on whether or not the employee is full-time or part-time. A full-time employee who worked an average of at least 40 hours per week in the two weeks prior to the leave is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave.
Part-time employees with variable schedules who have worked for an employer over a period of more than 14 days are entitled to leave based on a calculation of fourteen times the average number of hours worked each day for the employer in the preceding six months prior to taking the leave. For example, the employee worked 500 hours during the preceding 6-month period, there were 180 days in the 6-month period, so 500 ÷ 180 = 2.778 hours, 2.778 hours x 14 = 38.892 hours of leave that the employee is entitled to take.
Part-time employees with variable schedules who have worked fewer than 14 days for an employer will be entitled to the number of hours that they have worked in the preceding two weeks. For example, the employee worked 10 hours in a two-week period of time, they would be entitled to 10 hours.
Active firefighters who were scheduled to work more than 80 hours in the two weeks prior to the leave taken can take as many hours as they were scheduled to work, i.e. scheduled to work 80 hours they can take 80 hours; however, the law limits the dollar amount paid to the maximum of $511 per day or $5,110 in total.
For each hour of Supplemental Paid Sick Leave that a non-exempt covered employee is entitled to receive, the employee must be paid the highest of the following:
- Employee’s regular rate of pay for the workweek in which leave is taken
- State minimum wage
- Local minimum wage
- Average hourly pay for preceding 90 days (not including overtime pay)
Exempt employees must be paid the same rate of pay as wages calculated for other paid leave time.
Notice Requirement
Employers are required to place a notice of the 2021 COVID-19 Supplemental Paid Sick Leave in a conspicuous area of the workplace and to provide the notice electronically to any employee who does not frequently visit the workplace where the notice is posted. The Department of Industrial Relations has posted an example on their website to be used for this purpose.
Conclusion
SB 95 is currently in effect for all private and public employers with 25 or more employees. Employers cannot force employees to use their other leaves prior to using the Supplemental Paid Sick Leave. Please check with your HR, Auditor and Legal departments to ensure that everyone knows the process for providing retroactive pay and/or additional Supplemental Paid Sick Leave going forward.
As always, there are lots of nuances to this new law. We are always available to help you sort through it.