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California’s New Supplemental COVID-19 Sick Pay

by Jennifer Shaw and Melissa Whitehead | | Mar 25, 2021

Governor Newsom signed AB 95 last week, which is effective on March 29, 2021.  Below are the new law’s basic requirements.

Q: When is SB 95 effective? 

A: March 29, 2021, but retroactive to January 1, 2021 (see below); ends on September 30, 2021.

Q: Which employers have to comply with SB 95? 

A: All employers with 26 or more employees.

Q: For what purposes is SB 95 sick leave available? 

A: SB 95 establishes a new “bank” of COVID-19 related sick leave to be used for any of the following reasons:

  1. Employee is subject to government isolation/quarantine as defined by orders or guidelines of the CDPH/CDC, or local health departments, or is advised by a health care provider to self-quarantine or isolate due to COVID-19
  2. Employee attends an appointment to receive a COVID-19 vaccination
  3. Employee is experiencing symptoms related to a COVID-19 vaccination that prevent the employee from working
  4. Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis
  5. Employee is caring for a “family member” who is subject to a quarantine/isolation period, or who has been advised by a health care provider to self-quarantine
  6. Employee is caring for a child (regardless of age) who cannot go to school or child care because of COVID-19 “on the premises” (so, there is a closure because someone has COVID, not because of a general shutdown)

 Q: How much sick leave is available under SB 95? 

A: Full-time employees are entitled to 80 hours; part-time employees are entitled to pro-rated hours based on hours worked (14 times the average number of hours worked each day in the 6 months before the leave date).

Q: What is the applicable hourly rate?

A: Non-exempt employees must be paid the highest of: (1) the regular rate for the workweek during which the employee uses sick leave; (2) 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; (3) the state’s minimum wage; or (4) the local minimum wage.

Exempt employees must be paid the same rate as the employer pays for other forms of paid leave.

SB 95 does not require employers to pay more than $511 per day and $5,110 total per covered employee for COVID-19 supplemental paid sick leave.

Q: How does SB 95’s “offset” work? 

A: If an employer has already provided COVID-19-related sick leave to an employee for time off taken after January 1, 2021, for the same reasons as required by SB 95, then the employer may offset those hours against the SB 95 sick leave entitlements; this offset does not apply to CA required sick leave.

Q: How does SB 95’s retroactivity provision work?  

A: Employees may request to use SB 95 sick leave for time off taken since January 1, 2021, for a reason covered by SB 95; this may include, for example “giving back” sick leave already taken and using SB 95 sick leave instead.

Q: Can employers require employees to use other paid or unpaid leave before using SB 95 sick leave, or in lieu of SB 95 sick leave? 

A: No. However, employers can use SB 95 sick leave to satisfy ETS exclusion pay if applicable.

Q: What are SB 95’s posting and notice requirements? 

A: Employers must post the DLSE’s notice, which is available at https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf.

Q: What are SB 95’s wage statement requirements? 

A: Employers must include SB 95 sick leave separately on paystubs.  For employees with variable schedules, display “variable” next to the initial calculation.  Also, employers must update the amount of SB 95 sick leave available as employees use the time.

Q: How do SB 95 and the federal American Rescue Plan Act’s tax credit work together?

A: The ARPA’s tax credits are available to employers with fewer than 500 employees that voluntarily extend the Family First Coronavirus Response Act’s emergency sick leave and/or expanded FMLA leave benefits. (It is not clear under the ARPA whether employers may extend EPSL and not EFMLA, or vice versa. There are solid arguments in support of that interpretation, but nothing definitive. The DOL may address this issue in its upcoming ARPA guidance. Stay tuned.) California employers that are required to comply with SB 95 will receive ARPA tax credits so long as they satisfy applicable FFCRA requirements, such as distributing the employee notice.

Read SB-95 here and the DLSE’s FAQs here.

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