California Revives COVID-19 Supplemental Paid Sick Leave for California Workers

California Revives COVID-19 Supplemental Paid Sick Leave for California Workers

On March 19, 2021, Governor Newsom of California signed into law Senate Bill 95 (“2021 Law”, click here to read the law) which revives the California Supplemental Paid Sick Leave (“SPSL”) for workers in CA to use for COVID-19-related work absences. As you may recall, CA had enacted Assembly Bill 1867 back in September 2020 which provided workers with such an entitlement, but AB 1867 (“2020 Law”) expired on Dec. 31, 2020. The new 2021 Law picks up where the old law expired with a retroactive date to Jan. 1, 2021.

Most importantly, whereas the old 2020 Law applied only to employers with 500 or more employees nationwide, the new 2021 Law applies to employers with 26 or more employees. And because there is a requirement to print the SPSL balance on the paystub, this means that many more employers and EP clients will now see the SPSL balance appearing on CA workers’ paystubs, when they did not see it under the old law because they did not employ the requisite number of employees. Your organization may be composed of different divisions or entities that together constitute a single employer that has 26 or more employees. In preparation for the 2021 Law, EP recently conducted client outreach to obtain direction whether their respective organizations reach the 26-employee threshold for SPSL balance printing on paystubs. If you are unsure whether your organization meets the 26 or more employees threshold, please consult with your company’s labor counsel.

The SPSL hours are separate from, and in addition to, the regular California sick leave hours that already exist under state law since 2014 (the Healthy Workplace, Healthy Family Act of 2014). Employers can also opt to provide more benefits than what the law requires. There is no exclusion from the SPSL paystub printing requirement for employers subject to collective bargaining agreements. Even if the employee already received SPSL last year under the 2020 Law, the employee is entitled to a refreshed balance under the 2021 Law.

Full-time CA employees covered by the law are entitled to 80 hours of SPSL. Part-time variable hours employees receive a SPSL balance that is based on an average over a look back period, up to a maximum of 80 hours of SPSL. Some of the qualifying events for SPSL under 2021 Law are different from the qualifying events under the previous law. The qualifying events under the new law are:

A. The covered employee is 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. (PARTIALLY NEW)

B. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

C. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19. (NEW)

D. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework. (NEW)

E. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. (NEW)

F. The covered employee is caring for a family member (as defined by the law), who is subject to an order or guidelines described in subparagraph A., or who has been advised to self-quarantine, as described in subparagraph B. (NEW FOR FAMILY CARE)

G. The covered 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. (NEW)

If the employee is able to telework during any of the above qualifying events, then such employee is not entitled to SPSL. SPSL caps at $511 per day or $5,110 in total, per employee. Unlike the federal Families First Coronavirus Response Act’s (“FFCRA”) paid sick leave, there is no tax credit for employers who pay SPSL. (Click here to read EP’s Legal Alert on the Federal American Rescue Plan Act, which includes an extension of the federal tax credit to employers who opt to provide paid leave under the FFCRA.) Unused SPSL is not paid out upon the end of employment. Unless extended, the 2021 Law expires on Sept. 30, 2021.

Employers must also display a poster at the workplace which describes employees’ rights under SB 95. If employees do not frequent a workplace, then the poster can be disseminated electronically to such employees. The CA state labor commissioner has created a model poster available here and a set of FAQs about the new law available here. 

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For any questions about this Alert, you may contact:

Pantea Lili Ahmadi, Senior Corporate & Employment Counsel | pahmadi@ep.com

Alan Wu, Director, Employment & Labor Relations Counsel | awu@ep.com

Scott Bishop, Vice President, Employment Law | sbishop@ep.com