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UPE News Item

New 2021 Covid Supplemental Paid Sick Leave

     California has adopted a new “Covid-19 Supplemental Paid Sick Leave” statute. SB 95 will go into effect on March 29, and is significantly broader in scope than the emergency paid sick leave provided by federal law that expired in December 2020, and is also more generous than California’s prior supplemental paid sick leave statute that also expired at the end of 2020. The new law applies to public and private employers of more than 25 employees nationwide, so long as at least one employee works in California, and requires them to provide a new allotment of “Supplemental Paid Sick Leave” (SPSL) between January 1, 2021, and September 30, 2021, for specific purposes.

Qualifying Reasons to Use Supplemental Paid Sick leave

    A full-time employee who cannot work or telework due to certain reasons related to Covid-19, can take up to 80 hours of supplemental paid leave for the following reasons:

  • to quarantine or isolate as required by federal, state, or local law (including county health orders), or as advised by a health care provider;
  • for workers experiencing symptoms related to Covid-19 and who are seeking a medical diagnosis;
  • to attend a Covid-19 vaccination appointment;
  • for workers experiencing symptoms related to a Covid-19 vaccine;
  • to care for a family member who has to quarantine or be in isolation;
  • to care for a child whose school is not open for in-person instruction or whose child care is unavailable due to Covid- 19.

The statute provides additional details specific to in home support services workers and firefighters that are not summarized here.

Employees Choose When and How Much Leave to Use and Employers May Not Require Verification or Certification Unless There is Evidence of Abuse

     Employers cannot require any employee to use other leaves before, or instead of, SPSL. Employees are entitled to take leave immediately upon their request and do not need to provide medical certification, or otherwise verify their need for leave. This was true of the 2020 statute as well, and the Labor Commissioner took the position that an employer may only seek verification or documentation if they have evidence that an employee is abusing the leave. Employers cannot require workers to use other paid or unpaid leaves before the statutory supplemental paid sick leave.

Amount of Leave, Rate of Pay and Retroactivity to January 1, 2021

     Full time workers who are non-exempt (i.e., who earn overtime) can use up to 80 hours of supplemental paid sick leave, and part time workers’ leaves are prorated. The employer must pay those workers using the supplemental paid sick leave their regular rate of pay, up to a max of $511 per day ($63.88 per hour for an employee who works an 8-hour day). The amount of leave is prorated for part-time workers and the statute provides guidance on how to calculate leave allocations for those with variable schedules. Exempt employees are entitled to leave that is paid in the same way as other paid leaves, up to the same $511 daily cap.

     A worker who had to go without pay, or use regular sick leave, vacation, or other paid leave (other than a Covid-leave), prior to the passage of SPSL, for any of the reasons described above, may apply the supplemental sick leave retroactively to January 1, 2021. To do so, the employee must make a verbal or written request for retroactive application of the leave. After making the request, the employee should be provided the retroactive payment on or before the payday for the next full pay period. The statute does not expressly require the employer to retroactively restore regular sick leave or vacation balances if the employee drew them down for a qualifying Covid-related reason between January 1, 2021, and March 29, 2021, but it follows that this is also required, as the employee would have had the choice to preserve those leave balances if the statute had been in effect since January 1. Already, however, some employers are arguing that retroactive application only requires the employer to provide payment to those workers who may have taken unpaid leave for a qualifying reason before March 29, or was paid less than they would have been if the statute had been in effect since January 1. We believe this interpretation is too narrow. Some in the management-side bar clearly agree. See, e.g. https://ogletree.com/insights/california-legislature-sends-new-covid-19-supplemental-paid-sick- leave-bill-to-governor-for-signature/ (“if an employee took paid vacation in February 2021 because he or she was experiencing COVID-19 symptoms and waiting for a medical diagnosis, the employee could ask for and the employer would have to pay COVID-19 SPSL for those days and replenish the employee’s vacation bank”).

Offsets are Limited to Supplemental Leave Policies for Covid-Related Reasons

     An employer that already had a supplemental Covid leave policy in place since January of 2021, that provided the same or more pay for the same reasons described above, can offset hours used, under that policy, against an employee’s supplemental paid sick leave allocation provided by the new law. Covid-related sick leave time provided for by federal or local law can offset the new leave allotment, but the new leave is in addition to the sick leave used pursuant to California’s regular minimum sick leave statute (Labor Code Section 246), which cannot be offset from the new SPSL.

Interaction with CalOSHA’s Pay Continuity Requirements for Those Who Need to Quarantine After a Workplace Exposure

     CalOSHA’s Aerosol Transmissible Diseases Standard (applicable to hospitals and other high-risk settings) and Emergency Temporary Standard (applicable to virtually all other employers) both require an employer to maintain pay and benefits for an employee who is exposed to Covid-19 at work and needs to quarantine as a result. The employer may, however, require the employee to draw down SPSL benefits during such quarantine time. In all other situations, however, the employee is entitled to choose when and how much SPSL to use.

Notice Postings, Paystub Requirements, and Enforcement

     Effective at the close of the next full pay period after March 29, employers should provide employees with written notice, or paystubs, that identify supplemental paid sick leave available to them that is distinct from, and in addition to, paid sick days. Employers must also post notices regarding the new statute and can email notice to employees who are teleworking.

The Labor Commissioner is charged with enforcing the statute, as is the California Attorney General.

 

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