UPDATE: CALIFORNIA COVID SICK LEAVE (SB 95)

On March 19, 2021, Newsom signed new legislation restructuring California Paid Sick Leave obligations for Covid-related reasons.  This is a NEW sick leave obligation and is in addition to the employer obligations under the newly enacted American Rescue Plan Act (ARPA).  Employers must post a notice of these new leave rights.  A Model Notice is expected shortly from the DLSE.

Who is Covered?

From January 1, 2021 through September 30, 2021, all California employers with 25 or more employee must provide employees who are unable to work or telecommute with additional paid sick leave for any of the following reasons:

• Employee is subject to quarantine or isolation order
• Employee is advised by a health care provider to isolate
• Employee is experiencing symptoms and seeking a diagnosis
• Employee is caring for a family member (ie, spouse, registered domestic partner, parent, parent in-law, child of any age, grandparent, grandchild, or sibling) who is subject to a quarantine or isolation order or who has been advised to isolate by a health care provider
• Employee is caring for a child whose school or daycare is closed due to Covid-related reasons
• Employee is taking time off to get vaccinated
• Employee is experiencing symptoms related to having been vaccinated

How much Sick Leave is Required?

Full-time employees are entitled to up to 80 hours of paid sick leave.  Part-time employees will be entitled to a pro-rata share of two weeks paid sick leave.  Part-time paid sick leave should be calculated as follows:  1) Using the employee’s normally scheduled hours if they have a regular weekly schedule; or 2) Using the weekly average of hours worked over the prior 6 months or less, unless the employee has worked less than 14 days; or 3) If the employee has worked for the employer for less than 14 days, using the total number of hours the employee has worked.

Employees cannot be required to use other paid time off (vacation, PTO, normal paid sick leave) prior to using Covid Sick Leave.  However, employers can require that Covid Sick Leave is taken prior to any exclusion pay that may be provided under the Cal-OSHA Emergency Temporary Standard.

Rate of Pay

Sick leave must be paid at the greater of either:  1) the employee’s regular rate of pay for that workweek; or 2) the employee’s total wages (excluding overtime premiums) divided by total hours worked for prior 90 days; or 3) California state minimum wage; or 4) Local minimum wage.  Exempt employees shall be paid their normal salary during the period of Paid Sick Leave.

Retroactivity

California’s new Sick Leave Provision is retroactive to January 1, 2021.  This means that any employee who took paid time off for a covered reason must have that time off re-classified as Covid Sick Leave.

If an employee had leave paid through a vacation, PTO, or sick leave bank during the period of January 1 – March 30, 2021, those hours must be credited back to the employee and separately deducted from the new Covid Sick Leave bank.

Wage Statements

The employee’s wage statement must reflect this new available paid sick leave, rate of pay, and available hours as a separate line item on the wage statement.  The wage statement should also reflect any corrections that were made based on paid time off previously taken between January 1, 2021 and March 30, 2021, that is re-classified as Covid Sick Pay.

Interaction with FFCRA / ARPA Leave

Employers have separate obligations under the federal ARPA (including COBRA subsidies/tax credits and voluntary provision of additional paid sick leave).  While additional paid sick leave is voluntary under the ARPA, it is required under SB 95 for covered employers.  SB 95 clarifies that employers who chose to voluntarily extend FFCRA can deduct hours provided after December 31, 2020 from the hours required under the California Paid Sick Leave.

Questions?

Feel free to contact our office if you need additional clarification on these new obligations.
Telephone: (661) 864-7826

Email: Katy Raytis, Esq., Katy@bbr.law
Email: David Blaine, Esq., David@bbr.law