On March 19, 2021, California Governor Gavin Newsom signed Senate Bill No. 95 (SB 95) which retroactively extends and expands COVID-19 supplemental paid sick leave (CSPSL) through September 30, 2021. SB 95 creates new Labor Code sections 248.2 and 248.3, which require public and private employers with more than 25 employees to provide an addition of up to 80 hours of employer-paid CSPSL to covered employees and in-home supportive service providers on a retroactive basis to January 1, 2021— taking effect March 29, 2021.
The new legislation may appear similar to the previously discussed Executive Order N-51-20 and Assembly Bill 1867 passed in April and September of 2020, but SB 95 is considerably more expansive because it provides broader coverage, leave eligibility and entitlement.
Which Employers are Impacted?
Labor Code Section 248.2 expands its definition of “employers” to any business employing more than 25 employees. This is a stark contrast to the prior CSPSL statute that only applied to covered employers or “hiring entities” with 500 or more employees.
Who is a Covered Employee or Provider?
Covered employees are those who are “unable to work or telework for an employer” for any of the seven covered reasons outlined by Labor Code Section 248.2(b)(1) and further discussed below.
Providers are those who provide authorized in-home supportive services to eligible recipients as defined by California Welfare and Institutions Code for same covered reasons pursuant to Labor Code Section 248.3(b)(1).
When is a Covered Employee or Provider Entitled to CSPSL?
SB 95 expands the scope in which a covered employee is entitled to receive CSPSL in comparison to the prior CSPSL statute. Covered employees and providers may take CSPSL if they are unable to work because 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 federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace.
- Being advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- Attending an appointment to receive a vaccine for protection against contracting COVID-19.
- Experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine.
- Caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
What is the Amount of CSPSL Hours Owed?
Full Time Employees
Similar to the prior 2020 CSPSL statute, a covered employee is entitled to 80 hours of CSPSL if the employer “considers the covered employee to work full time” or such employee “worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took” CSPSL.
Part Time Employees
Covered employees who are not considered “full time” are entitled to CSPSL depending on their schedule as follows:
- Part time employees who work normal or “fixed” weekly schedules will receive an amount of CSPSL equal to the total number of hours they are normally scheduled to work for the employer over two weeks.
- Part time employees who work a non-fixed or “variable” number of hours receive 14 times the average number of hours they worked each day for the employer in the six months preceding the date they took leave. If the employee has worked for the employer for less than six months, the total length of their employment is used.
- Part time employees who work a non-fixed or “variable” number of hours will receive the total number of hours the covered employee has worked for the employer if they have worked over a period of 14 days or fewer.
Firefighters
A covered employee who is a firefighter is entitled to an amount of CSPSL equal to the total amount of hours that the covered employee was scheduled to work for the employer in those two preceding weeks if such employee was scheduled to work more than 80 hours for the employer in the two weeks preceding the date of CSPSL taken.
These hours are in addition to any paid sick leave to which an employee is entitled pursuant to the Healthy Workplaces, Healthy Families Act of 2014 under Labor Code Section 246.
How is the Payment of CSPSL Calculated?
For non-exempt employees, employers are required to pay each hour of CSPSL at a rate of pay calculated at the highest rate of:
- The regular rate of pay for the workweek in which CSPSL was used, whether or not the employee worked overtime in that workweek;
- The total wages—excluding overtime premium pay—divided by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
- California’s minimum wage; or
- The local minimum wage applicable to the employee.
For exempt employees, employers are required to pay CSPSL the same way as the employer would calculate wages for other forms of pre-COVID-19 paid leave to which such covered employee would be entitled.
Similar to the prior 2020 CSPSL statute and the Families First Coronavirus Response Act (FFCRA), employers are not required to pay more than $511 for each day an employee uses CSPSL, or $5,110 in the aggregate to any employee for CSPSL. SB 95, however, provides a covered employee who has reached the maximum amount with an opportunity “to utilize other paid leave that is available to the covered employee in order to fully compensate the covered employee for leave taken.”
How Will CSPSL Retroactively Apply to Leaves Taken Since January 1, 2021?
If a covered employee was entitled to take leave at any time since January 2021 for one of the seven covered reasons discussed above and did not receive compensation as required by the CSPSL, then upon the oral or written request of the employee, the employer is required to pay the covered employee a retroactive payment that provides for such compensation. Essentially, an employer may be obligated to reimburse or replenish covered employees for having used other benefits (i.e. vacation or paid-time off) when they otherwise would have been entitled to CSPSL.
If a retroactive payment is requested, the employer must provide the covered employee such payment on or before the payday for the next full pay period.
Can Employers Credit Other Paid Leaves With CSPSL Since January 1, 2021?
If a covered employee had taken an absence for the same seven covered reasons outlined above on or after January 1, 2021, the employer may credit towards CSPSL the hours of other paid leave the employer provided, except for any leave taken as regular paid sick leave. If an employer continued to provide FFCRA benefits on or after January 1, 2021, and covered employees had used less than the 80 hours to which they would have been entitled under CSPSL, the employer may count those hours against the 2021 hours related to retroactive payments. Employers, however, may not credit any CSPSL hours taken in 2020.
Are Employers Required to Provide Additional CSPSL if Benefits are Provided Under FFRCA After January 1, 2021?
As the amount of FFCRA benefits provided may be credited towards a covered employee’s hours of entitled CSPSL if taken after January 1, 2021, Labor Code § 248.2 does not clarify whether additional CSPSL hours must also be provided to covered employees. For in-home support services providers, however, CSPSL provided for the seven covered reasons per Labor Code Section 248.3 is “in addition to” any unused sick leave benefit put in place by the FFCRA, which has been extended for a provider to use until March 31, 2021.
Are Employers Prohibited From Requiring Other Leaves Prior to CSPSL?
An employer may not require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to a covered employee prior to using CSPSL.
Are There Any Wage Statement Obligations Regarding CSPSL?
Similar to the prior 2020 CSPSL, employers must separately provide a list of the remaining CSPSL balance including the rate of pay and corresponding CSPSL wages on an employee’s wage statement, or in a separate writing. The amount of remaining CSPSL must be displayed separately from any pre-COVID paid sick leave available. SB 95 provides that the wage statement provision is not enforceable until the first full pay period after March 29, 2021.
Does SB 95 Impact Exclusion Pay Obligations Per California Division of Occupational Safety And Health (“Cal OSHA”)?
Per Cal OSHA, an employer is obligated to exclude employees deemed “COVID-19 exposure” (i.e. employees who test positive or come into close contact with a positive individual related to work) from the workplace as part of its COVID-19 Prevention Program, and must provide exclusion pay if an employee is excluded from the workplace. SB 95, however, allows an employer to require an employee to exhaust CSPSL prior to providing an employee exclusion pay per Cal OSHA.
Although SB 95 allows an employer to credit CSPSL hours and retroactively pay for situations outlined above since January 1, 2021, it remains unclear whether an employer is allowed to credit exclusion payments made since January 1, 2021, even though the reasons qualifying for exclusion pay are similar to those triggered by CSPSL.
Moreover, an employer may be required to comply with local ordinances, since they are not preempted by the new requirements of SB 95.
If you have any questions regarding this Alert, please contact the authors, David L. Cheng, partner in our Los Angeles office at dcheng@fordharrison.com, or Paul M. Suh, associate in our Los Angeles office at psuh@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.