California Governor Newsom signs COVID-19 Supplemental Paid Sick Leave Bill

The original COVID-19 Supplemental Paid Sick Leave (CA SPSL) bill expired December 31, 2020, and it only applied to large employers.

On March 19, California Governor Gavin Newsom signed SB95, which now expands the original bill to employers with 26 or more employees.

What is it? A COVID-19 supplemental paid sick leave bill that provides sick leave to employees, similar to the original bill that expired on December 31, 2020. This CA SPSL is entirely new, and does not overlap with any leave granted under the prior CA SPSL law that expired December 31, 2020.

Notably, two of the qualifying reasons for leave are related to COVID-19 vaccine injections, including adverse side effects that prevent an employee from working.

There are different rules for firefighters and in-home supportive services and/or waiver personal care services providers.

Which employers must comply? Public or private employers with 26 more employees.

When is it effective?  March 29, 2021; however, the leave is retroactive back to January 1, 2021. The paystub requirement is enforceable starting the next full pay period after March 29, 2021.

When does it expire?  September 30, 2021

What is the amount of leave?

  • Full-time workers are entitled to 80 hours of paid sick leave.
  • Workers scheduled to work, on average, 40 hours per week in the two weeks prior to receiving the COVID-19 CA SPSL are entitled to 80 hours of leave.

Part-time workers are eligible based on hours worked.

  • Workers with a normal weekly schedule are entitled to paid leave equaling total number of hours they are scheduled to work over two weeks.
  • Part-time workers with a variable hour schedule are eligible for leave up to 14 times the average number of hours the individual worked each day in the six months prior to the leave date.

What are the qualifying reasons for the new CA SPSL?

A covered employee is any worker who is unable to work or telework for any one of the following reasons:

  1. The worker is subject to a quarantine or isolation “period” related to COVID-19 as defined by an order or guidelines of the CA Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace;
  2. The worker is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19;
  3. The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19;
  4. The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work;
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  6. The employee is caring for a family member (minor or adult child, parent, spouse, domestic partner, grandparent, grandchild, or sibling) who is subject to a quarantine or isolation period, or who has been advised to self-quarantine; or
  7. 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.

Can FFCRA leave be used towards this new CA SPSL mandate?  Yes, as long as the leave is provided for reasons that coincide with qualifying reasons for the new CA SPSL. This can be retroactive back to January 1, 2021. Both FFCRA and CA SPSL can run concurrently as long as the qualifying reasons overlap and pay is on par with CA SPSL requirements.

Can an employer require a worker to use other paid leave first?  No. This leave must be in addition to any other supplemental paid leave. However, any other specific COVID-19 supplemental paid sick leave taken after January 1, 2021, for the same qualifying reasons may run concurrently with the new CA SPSL.

What is the rate of pay for leave taken?

A covered non-exempt employee is paid at the highest of (A) the regular rate of pay as calculated for the workweek in which the covered employee uses the CA SPSL; (B) the regular rate of pay as calculated by dividing the covered employee’s total wages (excluding overtime premium pay) by the total hours worked in the full pay periods of the prior 90 days of employment; (C) the state minimum wage; or (D) the local minimum wage applicable to the employee.

A covered exempt employee’s benefits must be calculated in the same manner as other paid leave time provided by the employer.

In no circumstance is the employer required to pay more than $511 per day and $5,110 in the aggregate.

Does the new CA SPSL interfere with the Cal/OSHA Emergency Temporary Standard (ETS)? An employer may require an employee to first exhaust their COVID-19 CA SPSL in order to satisfy the “continued earnings” obligation of the ETS.

Does an employer need to provide retroactive payment for leave taken on or after January 1, 2021 prior to the enactment of the bill? In short, the answer is yes. The retroactive payment should be paid on or before the pay date for the next full pay period after oral or written request from the employee.

There are notice and paystub requirements included. A model notice will be available by April 5, 2021, and employers may post the notice in the workplace or provide electronically or by mail to remote workers.

A worker’s paycheck stub must also reflect CA SPSL as an item set forth separately from regular paid sick days.

For variable hour workers, the paystub must include an initial calculation indicating “variable” next to the calculation.

About Michelle Cammayo, Compliance National Practice Leader, Employee Benefits

Michelle Cammayo has close to 20 years of Employee Benefits experience specializing in all lines of health and welfare benefits. Today, Michelle works closely with clients and partners to provide guidance in areas of the law including ERISA, HIPAA, COBRA, FMLA and PPACA. She is also the IMA National Practice Leader for Compliance and endeavors to ensure IMA helps its clients manage and eliminate risk is the most effective manner. She is passionate about educating others and her passion for this shined in the Covid era where Michelle conducted weekly and then monthly webinars providing guidance to employers. Her podcast, Cammayo’s Compliance Talk, has gained popularity in the last three years to become a favorite amongst Bolton clients. She also contributes regularly to the Bolton blog and has authored several articles for industry-related newsletters. Michelle’s consultative approach with employers provides practical advice as employers endeavor to be complaint.

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