California Resurrects COVID Supplemental Paid Sick Leave

Employment Law

California employers, take note: Governor Gavin Newsom has signed into law a bill that not only brought back supplemental paid sick leave (SPSL) for COVID-19-related absences but also expanded coverage.

Last year, California enacted a state law requiring employers with 500 or more workers to provide SPSL to employees for COVID-19-related reasons: when a worker was subject to an isolation or quarantine order, when a health care provider recommended that the employee isolate or quarantine, or when the employer itself prevented an employee from working due to concerns about COVID-19 transmission.

The leave expired on December 31—at least until mid-March, when lawmakers enacted SB 95, a measure bringing back SPSL, and Governor Newsom signed it into law.
 
“Paid sick leave gives workers the time they need to care for themselves and loved ones while keeping their coworkers, families and communities safe,” Governor Newsom said in a statement about the new law. “Even as case rates and hospitalizations decline and vaccinations ramp up, we can’t let our guard down and must do all we can to stop this virus from spreading.”

The measure created Labor Code 248.2, reinstating the SPSL mandate and broadening it to all private employers with 26 or more employees, as well as to certain public entities. In addition, the law established a second provision, Labor Code 248.3, applicable to providers of in-home supportive services.

Reasons for permitted leave also expanded, with employees now allowed to use SPSL to care for themselves or family members—defined to include a child, grandchild, grandparent, parent, sibling or spouse—for reasons including receiving a COVID-19 vaccination or experiencing symptoms related to the vaccine; being subject to a quarantine or isolation order or having been advised by a health care provider to self-quarantine; experiencing symptoms of COVID-19; or caring for a child whose school or place of care is closed or unavailable for reasons related to COVID-19.

Employees are entitled to SPSL when they are unable to work or telework. Pay for leave taken for these reasons is capped at $511 per day and $5,110 in total. An employee who makes more than that amount can use additional available paid leave to make up the difference in order to receive full pay during their leave.

Pursuant to the new law, an employee is entitled to 80 hours of COVID-19 SPSL if the employee either works full time or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the worker took the leave. Part-time employees will receive the total number of hours they are normally scheduled to work over two weeks. The total number of hours of COVID-19 SPSL is in addition to any paid sick leave available.

Employers must post the model notice of the new law at the workplace, or if employees do not frequent the workplace, the notice can be sent by email. Employers must also provide employees with notice of their available leave balances on their pay stubs or in a separate writing at the time wages are paid.

Importantly, SB 95 took retroactive effect as of January 1, 2021, and does not preempt local ordinances, leaving employers in some jurisdictions (the cities of Long Beach, Los Angeles, Oakland, Sacramento, San Francisco, San Jose and Santa Rosa, as well as the counties of Los Angeles, Sacramento, San Mateo and Sonoma) to manage both state and local leave laws. The law remains in effect until September 30, 2021.

To read SB 95, click here.

Why it matters: While the new law may look generally familiar to those employers required to provide SPSL last year, the 2021 version applies to many more employers and provides leave for additional reasons. California employers should ensure compliance with the new law as well as any local analogues that apply.

Manatt’s employment team has been closely following COVID-19 SPSL updates. Reach out to a member of the team with any questions or to review your compliance strategy.

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