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Alerts and Updates

New COVID-19 Paid Sick Leave Law Retroactively Expands California Employer Obligations

March 23, 2021

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In effect, SB 95 both revives and expands upon the expired SPSL laws, extending the reach to far more employers and increasing the grounds for taking paid leave.

New COVID-19 legislation continues to roll out in California. On March 19, 2021, Governor Gavin Newsom signed SB 95, requiring payment during leaves due to certain COVID-19-related reasons for both private and public employers. The covered absences extend beyond COVID-19 illness or exposure and include vaccinations and COVID-19-related school or child care closures. The bill, designated as emergency legislation, takes effect March 29, 2021, but applies retroactively to January 1, 2021.

Background

In 2014, the California Legislature enacted the Healthy Workplaces, Healthy Families Act, imposing paid sick leave requirements on all California employers. See our September 11, 2014, Alert. In September 2020, in response to the COVID-19 pandemic, the state of California enacted Supplemental Paid Sick Leave (SPSL), which required employers with more than 500 employees nationwide or in certain industries to provide up to 80 hours of supplemental paid leave for certain COVID-19-related reasons to employees who were not covered by the federal Families First Coronavirus Response Act (FFCRA). See our September 17, 2020, Alert. SPSL expired December 31, 2020, although some employees who exhibited COVID-19 symptoms prior to the expiration could continue to utilize SPSL benefits. See our January 5, 2021, Alert. For 11 weeks, no supplemental COVID-19 paid sick leave laws have been in effect, leaving employers to rely upon the requirements of the state’s standard paid sick leave law, the Cal/OSHA emergency temporary standards, when applicable, or their own separate policies.

Qualified Employers and Reasons for Leave

In effect, SB 95 both revives and expands upon the expired SPSL laws, extending the reach to far more employers and increasing the grounds for taking paid leave.

Unlike the prior law, which applied to very large private employers, the new law applies to both private and public employers and broadens coverage to employers with as few as 25 employees. Additionally, unlike the original SPSL law, which only applied to employees who were unable to work remotely, the new law applies to both employees who must report to their employer’s worksite or who typically work remotely but are unable to do so for a covered reason.

Further, the new law expands the qualifying reasons for leave to the following:

  • The employee is subject to a quarantine or isolation period related to COVID-19 as defined by state order or guidelines, the CDC or local public health authorities;
  • The employee has been advised by a healthcare provider to self-quarantine or isolate due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for a specified family member who is subject to a quarantine or isolation period related to COVID-19 as defined by state order or guidelines, the CDC or local public health authorities or advised to self-quarantine; or
  • The employee is caring for a child (regardless of age) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Unlike the original SPSL law, the new law does not require payment if the employee is prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19. However, the Cal/OSHA emergency temporary standards, in effect through May 2021, may provide for pay continuation for quarantined employees in this circumstance independent of the leave entitlement under this new law. See our December 10, 2020, Alert.

The new law has special provisions related to firefighters, in-home supportive service providers and waiver personal care service providers.

Amount, Rate and Interplay of Leaves

The law provides for 80 hours of paid sick leave for eligible full-time employees. The amount of leave available to eligible part-time employees or those who work an irregular schedule is determined pursuant to a formula. Employees who have taken leave taken under the previous SPSL law are eligible for an additional 80 hours under the new law. Use under the expired law is not considered.

The law sets forth pay rates during leave and caps payment at $511 per day or $5,110 in the aggregate, unless action is taken by the federal government that impacts those limits.

Employers cannot force employees to exhaust other paid leave, such as standard paid sick leave or PTO, before or in lieu of using the new supplemental paid leave. However, this new leave may be applied toward any paid leave provided by employers under the Cal/OSHA emergency temporary standards, requiring pay continuation during mandatory quarantine following workplace exposure.

The Law Is Retroactive to January 1, 2021

The law covers the 11-week period between the time SPSL and the FFCRA expired and the date the new law took effect. Employees who took unpaid time off between January 1 and March 19, 2021, may be subject to reimbursement if they are eligible and make a request verbally or in writing. Paid leave provided above and beyond the requirements of the Healthy Workplaces, Healthy Families Act (such as through the Cal/OSHA emergency temporary standards or under their own policy) may be subject to offset if the leave was provided after January 1, 2021, for reasons set forth in this law. The new law is set to expire September 30, 2021.

Additional Obligations for Employers Under the Law

The new SPSL law requires this paid leave to appear on pay stubs separately from an employee’s usual paid sick leave bank, and requires notice to employees.

What This Means for Employers

All businesses, schools and organizations with 25 employees or more and at least one in California are impacted by the new law. With vaccinations underway and many schools not fully reopened, employers should prepare for employee absences. Know when an absence may trigger payment. Consider drafting new temporary policies, review pay stubs and be ready to address requests for reimbursement. Evaluate the intersection of the new law with other COVID-19 rules and regulations including the Cal/OSHA emergency temporary standards, and don’t hesitate to reach out to counsel as needed.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, or any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.