Governor Newsom Signs New COVID-19 Relief Measure

On March 19, 2021, California Governor Gavin Newsom approved Senate Bill 95 (“SB 95”) which entitles most California employees to a new bank of COVID-19 supplemental paid sick leave. The law will go into effect on March 29, 2021.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on December 31, 2020, with the expiration of the mandatory requirements of the Families First Coronavirus Response Act (“FFCRA”). Since then, a handful of California cities and counties have passed local ordinances entitling employees within their jurisdiction to a continued right to paid sick leave for reasons related to COVID-19. With the passage of SB 95, the vast majority of California employees will soon be entitled to those same rights.

The new law requires California employers with more than 25 employees to provide up to 80 hours of paid sick leave to employees who are unable to work or telework for any of the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID-19.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
• The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for a family member who is subject to a quarantine or isolation order or who has been advised to self-quarantine by their doctor.
• The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they are considered to be “full time” by their employer or if they worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took his or her COVID-19 supplemental paid sick leave. Employees who do not satisfy either of these criteria will be entitled to a maximum amount of paid sick leave depending on their specific hours. As for the rate of pay for the supplemental paid sick leave, nonexempt employees must be paid at the highest of the following rates:

• The rate calculated in the same manner as the regular rate of pay for the workweek in which the employee uses sick leave, whether or not the employee actually works overtime in that workweek;
• The rate calculated by dividing the employee’s total wages (not including overtime) by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
• The state minimum wage; or
• The local minimum wage to which the employee is entitled.

For exempt employees, the rate of pay must be calculated in the same manner as the employer calculates wages for other forms of paid leave. Similar to the FFCRA, the amount of COVID-19 supplemental paid sick leave is capped at $511 per day and $5,110 total per worker. This cap, however, could change in the event federal legislation is enacted that increases the these amounts beyond what was provided for by FFCRA.

Similar to California’s prior laws regarding COVID-19 supplemental paid sick leave, this new law also requires employers to provide their employees with notice of their rights to this leave. For its part, the Labor Commissioner is supposed to issue a model notice no later than March 26, 2021. Employers are also required to note the amount of COVID-19 supplemental paid sick leave on their employees’ wage statements.

Critically, this law also provides that it applies retroactively to January 1, 2021. This means that if employees previously took leave that would qualify under this new law but were not compensated, then the employer is obligated to compensate that leave now upon a request from the employee. The law does provide, however, that if an employer previously provided a supplemental benefit to its employees consistent with this new law, then it can count any previously paid hours against the 80 hours it is required to provide.

This new law is set to go into effect March 29, 2021, and will not expire until September 30, 2021, at the earliest. As with most things, California employers need to promptly review, and likely update, their current policies and protocols to ensure they are in compliance. Stoel Rives will continue to provide updates as more information becomes available.