URGENT! California: Statewide Paid Sick Leave Relaunched

Recently enacted SB 95 relaunched California’s statewide emergency paid sick leave (EPSL). Even though the bill is effective as of March 29^th, it is retroactive back to January 1, 2021. Employers with more than 25 employees are subject to the current rules. Employees (not independent contractors) are eligible for leave if they are unable to work or telework because of one of the following reasons:

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

Full-time employees may take up to 80 hours of EPSL, and part-time employees may take up to the number of hours they are normally scheduled to work over two weeks. There are additional considerations for variable hour workers. Leave cannot be conditioned on medical certification; however, it may be reasonable in certain circumstances to ask for documentation before paying EPSL when the employer has other information indicating that the covered employee is not requesting 2021 COVID-19 Supplemental Paid Sick leave for a valid purpose. EPSL is in addition to regular paid sick leave required by the state. Note that there are additional rules specific to firefighters and providers of in-home supportive services.

Non-exempt employees must be paid the highest of either their regular rate, total wages (excluding overtime premium pay) divided by total hours worked in the prior 90 days of employment, state minimum wage, or local minimum wage. Exempt employees are paid the same as when the employer calculates wages for other forms of paid leave.

Employers must pay up to $511 per day, $5110 in the aggregate, for EPSL (paid amounts otherwise align with federal requirements if those are higher); employees may supplement their pay with other available paid leave to fully compensate them for taking leave. Employers cannot force employees to take other paid time off before taking EPSL. However, employers may require employees to use EPSL before receiving wages and benefits for leave required under Cal-OSHA’s Emergency Temporary Standard.

If employees took paid leave between January 1 and March 28, 2021 (excluding regular paid sick leave) for any of the qualifying reasons of EPSL that met the pay requirements of EPSL, employers may count that time against employees’ EPSL entitlement. This includes leave taken pursuant to federal or local leave (e.g., FFCRA leave, local emergency paid sick leave laws, etc.), but excludes state EPSL leave initiated under 2020 rules that bled into 2021 (e.g., EPSL leave taken December 29, 2020 through January 3, 2021). If employees took unpaid leave between January 1, 2021 and March 28, 2021 that would have qualified under SB 95, employers must retroactively pay employees their EPSL entitlement on or before the payday for the next full pay period after employees’ verbal or written request for payment. The retroactive payment counts toward and reduces the employee’s bank of EPSL.

COVID-19 supplemental paid sick leave must be tracked separately from paid sick days, including on wage statements; however, it does not have to appear on wage statements until the next full pay period following March 29, 2021. For part-time employees with variable work hours, employers may put “variable” on the wage statement next to their EPSL calculation.

Employers must conspicuously display the required poster in the workplace, and electronically provide the poster to employees who work remotely.

Action Items