In September 2020, Governor Newsom signed AB 1867 into law, which created Supplemental Paid Sick Leave (“SPSL”) rights for millions of California employees who were not eligible for such leave under the federal Families First Coronavirus Response Act (“FFCRA”). We blogged about AB 1867 here.
Since AB 1867 expired on December 31, 2020, as did the leave entitlements in the FFCRA, there has been rampant speculation that the California Legislature would extend SPSL in some capacity. The extension of California’s SPSL was finally confirmed on March 19, 2021, when Governor Newsom signed SB 95 into law.
The new law is a greatly expanded version of AB 1867 in terms of which employers are covered and the circumstances under which employees are eligible to take leave (referred to here as “2021-SPSL”).
Which employers are required to provide 2021-SPSL?
All employers, public or private, with 25 or more employees.
Is an employee that took SPSL in 2020 eligible for 2021-SPSL?
Yes. SB 95 creates a new entitlement to leave, regardless of whether an employee took SPSL under the state and federal SPSL laws that expired on December 31, 2020.
When can employees begin taking 2021-SPSL?
Employers are required to begin providing leave on March 29, 2021.
However, the requirements of the new law apply retroactively back to January 1, 2021. This means that, if requested, employers must retroactively pay employees who took leave for covered reasons between January 1, 2021 and March 28, 2021 if the qualifying leave was not paid by the employer in the amount that is required under the new law.
When does the new law expire?
September 30, 2021. If the law expires while a covered employee is taking leave, the employee can finish taking the amount of 2021-SPSL they are entitled to receive.
Under what circumstances can employees use 2021-SPSL?
SB 95 allows eligible employees to use 2021-SPSL for many more circumstances than were permitted under AB 1867. Eligible employees are entitled to take 2021-SPSL if they are unable to work or telework for any of the following reasons:
-they are subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace
-they have been advised by a health care provider to self-quarantine due to concerns related to COVID-19
-to attend an appointment to receive the COVID-19 vaccine or because they are experiencing symptoms after a COVID-19 vaccine
-they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis
-to care for a family member who is subject to a quarantine or isolation order or who has been advised to self-quarantine
-to care for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19
How much 2021-SPSL are eligible employees entitled to take?
Full-time employees are entitled to up to 80 hours of 2021-SPSL (with the exception of active firefighters, who are eligible to take more under certain circumstances).
A part-time employee with a regular weekly schedule is entitled to take an amount of 2021-SPSL equal to the number of hours the employee is normally scheduled to work over a two-week period.
A part-time employee whose hours vary is entitled to take 2021-SPSL in an amount equal to 14 times the average number of hours the employee worked each day for the employer in the 6 months preceding the date the employee took 2021-SPSL (or during the entire period the employee has worked for the employer if that period is less than 6 months).
If an employee has worked for the employer for 14 days or less, the employee is entitled to take an amount of 2021-SPSL equal to the total number of hours the employee has worked for the employer.
How do employers determine the rate of pay for employees who take 2021-SPSL?
Non-exempt employees: Pay for 2021-SPSL is calculated based on the highest of the following: (i) the employee’s regular rate of pay during the workweek in which the leave is taken; (ii) a rate calculated by dividing the employee’s total wages (not including overtime) by the employee’s total hours worked in the past 90 days of employment; (iii) the state minimum wage; or (iv) the local minimum wage.
Exempt employees: Pay for 2021-SPSL must be calculated using the same method the employer uses to calculate wages for other forms of paid leave time.
Is there a cap on the amount of 2021-SPSL pay an employee can receive?
Yes. 2021-SPSL compensation is capped at $511 per day and $5,110 total for all 2021-SPSL taken per employee, unless the corresponding federal caps are increased, in which case the new federal caps would apply in California as well.
Can employers require employees to use other types of available leaves before using 2021-SPSL?
However, if an employee is excluded from the workplace due to exposure to COVID-19 and is therefore entitled to exclusion pay (see our blog post on exclusion pay here), the employer may require the employee to use 2021-SPSL before paying exclusion pay.
If an employer voluntarily provided COVID-related sick leave to its employees in 2021 before SB 95 was enacted, can the employer deduct such leave from an employee’s 2021-SPSL entitlement?
Yes, as long as the leave provided met the requirements of 2021-SPSL, meaning: (1) it was taken for a qualifying reason; (2) the employee was not required to take any other paid time off before taking the provided leave; and (3) the employee was paid at rate greater than or equal to the amount required for 2021-SPSL.
Do employers have to notify employees of their rights to 2021-SPSL?
Covered employers must provide notice to employees of their 2021-SPSL rights by either posting a notice in a location in the workplace where employees can easily read it or by electronically distributing a notice to employees who work remotely. A sample created by the Labor Commissioner can be found here.
Employers are also required to inform employees how much 2021-SPSL they have available on either employees’ paystubs/wage statements or by providing that information in a separate writing on pay days. (This obligation is distinct from, and in addition to, the employer’s obligation to provide accrual and usage information with respect to required non-COVID paid sick leave.) SB 95 recognizes the inherent difficulty in providing accurate information to employees with variable schedules; therefore, employers are permitted to provide those employees with an initial calculation of 2021-SPSL available, and then indicate “variable” next to that calculation thereafter (unless an employee requests an updated calculation and/or requests to use 2021-SPSL). Don’t wait – employers must provide compliant paystubs or other writings beginning with the first full pay period after the law became effective on March 29, 2021.