SB 95 – California’s 2021 Supplemental Paid Sick Leave

Covered Employers

Unlike the 2020 Supplemental Paid Sick Leave, which applied to employers with 500 or more employees, SB 95 requires employers with more than 25 employees to provide additional COVID-19 sick leave. The law also applies broadly to all private and public employers in California.

Hours and Wages

Full-time employees are eligible for up to 80 hours of paid sick leave, while part-time employees receive leave based on their average hours worked. The FAQs on the Labor Commissioner’s website provide a breakdown of how to calculate this average based on an employee’s length of service.²

Nonexempt employees must be compensated at the highest of the following: (i) calculated in the same manner of the regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek; (ii) calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment, (iii) the state minimum wage, or (iv) the local minimum wage. As with the 2020 Supplemental Paid Sick Leave, employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee under the new statute.

The hours provided under this statute must be above and beyond those already required by California law, meaning sick leave already required by California law does not qualify. Similarly, COVID-related sick leave provided pursuant to 2020 Supplemental Paid Sick Leave will not count toward the 80-hour requirement.

Additionally, the new law prohibits employers from requiring an employee to use any other paid or unpaid leave, paid time off, or other vacation time either before or in place of COVID-19 paid sick leave. However, an employer can require an employee to exhaust COVID-19 paid sick leave first before granting other leave when providing the employee with exclusion pay for time to isolate or quarantine under the Cal-OSHA Emergency Temporary Standards.

Reasons for Leave

The new law provides a broad range of COVID-related bases for employees to take COVID-19 sick leave, expanding the reasons for leave previously covered under 2020 Supplemental Paid Sick Leave. The employer must grant COVID-19 sick leave immediately upon oral or written request if the employee is unable to work or telework for any of the following reasons:

1. the employee is subject to a quarantine or isolation period due to COVID-19 based on an order or guidelines from federal, state, or local agencies — if subject to mandatory quarantine, the employee must be permitted to use COVID-19 paid sick leave for the minimum quarantine period mandated;
2. the employee has been advised to self-isolate by a healthcare provider due to COVID-19 concerns;
3. the employee is attending an appointment to receive a COVID-19 vaccine;
4. the employee is experiencing symptoms related to receiving a COVID-19 vaccine that prevent the employee from working or teleworking;
5. the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
6. the employee is caring for a family member who is subject to a mandatory quarantine or isolation order or has been advised to quarantine or isolate by a healthcare provider; or
7. the employee is caring for a family member whose school or place of care is closed or otherwise unavailable because of COVID-19.

Retroactivity

The statute is retroactive to January 1, 2021, but that does not mean employers must chase down employees to determine which employees took time off that would have otherwise qualified for pay during this period. According to the FAQs on the Labor Commissioner’s website, “covered employees who took qualifying leave can request payment for that leave if it was not paid by the employer.” If the employer paid the employee for that qualified time off after January 1, the employer may retroactively count the hours of the other paid leave toward the total number of hours required under the statute.

Other Considerations for Employers

In 2020, several cities and counties passed similar supplemental sick leave ordinances that are still in effect. The FAQs specifically provide that time provided under a local COVID-related sick leave ordinance may count toward the employer’s obligations under state law so long as the reason for leave is covered by state law. Thus, in most cases, COVID-related sick leave under local and state law will run concurrently.

Employers in California are required to provide itemized wage statements, which must include how many hours of sick leave the employee has available. The FAQs require that SB 95 sick leave be a separate line item on employees’ wage statements. Employers should update wage statements immediately to comply.

Finally, and of critical importance, the statute does not provide for any subsidies or tax credits to the employer to offset the cost of the additional sick leave.

¹ Senate Bill 95, available at https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220SB95&showamends=false. 

² 2021 COVID-19 Supplemental Paid Sick Leave FAQs, available at https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html.