On March 29, 2021, a new California law took effect mandating COVID-related supplemental paid sick leave for employers with more than 25 employees. Specifically, Senate Bill (SB) 95 creates new Labor Code Section 248.2, which requires employers to provide supplemental paid sick leave for certain absences related to COVID-19, in addition to other paid time off benefits to which they are already entitled. This law (referred to below as the “2021 SPSL law”) applies retroactively to January 1, 2021 and is effective through September 30, 2021.
It is important to note that the benefits provided under the 2021 SPSL law differ significantly from those mandated by the state supplemental paid sick leave law enacted in 2020, and are in addition to applicable local requirements. Below is an overview of the key provisions of CA’s 2021 SPSL law:
1. Coverage and Reasons for Leave
Under the 2021 SPSL law, a covered employee is someone who works for an employer with 26 or more employees AND who is unable to work/telework because the employee or a family member:
(b) has been advised by a healthcare provider to quarantine due to COVID-19;
(c) in the case of a child, their school or place of care is closed due to COVID-19; or
(d) in the case of the employee only, is either (i) experiencing COVID-related symptoms and seeking a diagnosis, or (ii) attending a COVID vaccine appointment or cannot work/telework due to vaccine-related symptoms.
Family member is defined to include a child, grandchild, grandparent, parent, sibling or spouse. The quarantine or isolation period will be determined by referring to guidelines or orders issued by the CA Department of Public Health, the federal Centers for Disease Control and Prevention (CDC) or a local health officer with jurisdiction over the workplace.
2. Validating Employee Requests
A covered employee is entitled to take leave under the 2021 SPSL law immediately upon the employee’s oral or written request. The employer is not allowed to request documentation or certification of the employee’s reason before approving the request. However, if the employer has information indicating that the covered employee is not requesting 2021 SPSL leave for a valid purpose, it may request documentation from the employee before paying for such leave.
3. Determining the number of paid sick leave hours
A covered employee who is considered full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to 80 hours of leave.
For part-time covered employees, employees with a normal weekly schedule are entitled to receive the total number of hours they are normally scheduled to work over two weeks. Part-time employees who work variable schedules are entitled to 14 times the average number of hours worked per day in the past 6 months.
4. Calculating the hourly rate for paid sick leave
Exempt salaried employees are entitled to pay for 2021 SPSL at the same rate as other forms of paid leave.
Non-exempt employees (typically paid by the hour) are entitled to pay at the highest of the following rates: (a) the regular rate of pay for the workweek in which SPSL is taken; (b) state minimum wage; (c) local minimum wage; or (d) the average hourly pay for the previous 90 days (not including overtime).
The total amount of pay for 2021 SPSL cannot exceed $511 per day or $5,110 total for exempt or non-exempt employees. However, an employee who has reached the maximum pay amounts may use other available paid leave to supplement his/her wages to reach 100% of normal pay.
5. Requesting Leave
Employers are required to provide leave under the 2021 SPSL law immediately upon the oral or written request of the covered employee to the employer. Payment for such leave must be provided by the employer no later than the payday for the next regular payroll period after the sick leave was taken.
6. Requesting Retroactive Pay
Because SPSL applies retroactively, covered employees are able to request payment for leave taken between January 1, 2021 and March 28, 2021, if the leave qualifies under the new law and was not previously paid. To do so, covered employees must make an oral or written request to their employer. The employer will then have until the payday for the next full pay period to pay the “retroactive” SPSL.
The 2021 SPSL law allows employers to take credit for other COVID-19 supplemental paid sick leave provided by local ordinance. Currently, multiple jurisdictions require such leave, including Long Beach, Los Angeles (City and County), Oakland, Sacramento (City and County), San Francisco, San Jose, San Mateo County, Santa Rosa, and Sonoma County.
8. Paystub and Recordkeeping Requirements
Since paid leave under the 2021 SPSL law is provided for in addition to regular paid sick leave, employers are required to offer an itemized wage statement or separate written account to ensure that covered employees understand how many hours of leave under the 2021 SPSL law remain available to them.
Also note that CA Labor Code Section 247.5 requires that records be kept for a three-year period on regular paid sick days and on 2021 SPSL days accrued and used, and that the records be made available to the Labor Commissioner or employee upon request.
9. Notice Requirements
Employers are required to display the required poster in a conspicuous place that contains information about the 2021 SPSL law. If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.
10. FAQs from the Labor Commissioner’s Office
The California Labor Commissioner has published detailed FAQs on the 2021 SPSL law, available here.
If you would like additional information about the 2021 SPSL law, or assistance with your compliance efforts, please contact Christy Kotowski at firstname.lastname@example.org or 510-748-0930.
Christy Kotowski joined Outside GC’s California team as Senior Counsel in 2019. Based in the San Francisco Bay Area, Christy handles a broad range of complex workplace issues at the federal, state and local levels. Previously, she worked as in-house employment counsel for several large companies, and started her legal career in the Silicon Valley office of Morrison & Foerster, one of California’s oldest and largest law firms. She can be reached at email@example.com or 510-748-0930.
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