EMPLOYERS OF 26 EMPLOYEES OR MORE NEW LAW ON COVID-19 LEAVE REQUIREMENTS
EMPLOYERS OF 26 EMPLOYEES OR MORE
NEW LAW ON COVID-19 LEAVE REQUIREMENTS
Senate Bill 95 becomes law in California on March 29, 2021. Employers with 26 or more employees have new COVID-19 supplemental paid sick leave requirements that are retroactive to January 1st, 2021 and goes through September 30, 2021. SB 91 adds new basis for paid sick leave.
SB 95 requires up to 80 hours of paid sick leave benefits in 2021. It is in addition to the California Supplemental Paid Sick Leave law (“CSPSL”) time off, which applied only to employers with 500 or more employees or food workers and general employer provided sick leave (whether the 3 days granted by some employers or incremental accrued time). Like other leave laws, Employers must post the Notice about SB 95 benefits (and can send it to remote workers electronically or by mail). The California Labor Commissioner issued a model notice for employer to post and issued responses to frequently asked questions (“FAQs”).
SB 95 qualifying leave reasons include:
- the employee “is subject to a quarantine or isolation period related to COVID-19” under California Department of Public Health, CDC, or a local health officer guidance or order.
- the employee “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.”
- the employee “is attending an appointment to receive a vaccine for protection against contracting COVID-19.”
- the employee “is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.”
- the employee “is experiencing symptoms of COVID-19 and seeking a medical diagnosis.”
- the employee is caring for a family member (child, grandchild, grandparent, parent, sibling, or spouse) who is quarantining or isolating.
- the employee is caring for a child “whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.”
It is the Employee, not the Employer who has the right to decide whether to use SB 95, sick time or paid time off (“PTO”) time first. But if it is workplace COVID-19 exposure based, the employer can first exhaust SB 95 sick time. Either way, compensation payments under SB 95 time off are generally calculated on the regular rate of pay (total wages/total hours worked pay periods the prior 90 days) or minimum wages, whichever is higher. Exempt employee SB 95 time off is calculated in the same manner as other PTO provided by the employer, capped for both exempt and non-exempt at $511 per day and $5,100 in the aggregate. And the available SB 95 sick leave must be on the employee’s wage statement as a separate line item.
For paid sick leave hours used by an employee under the FFCRA, CSPSL or any local ordinance before January 1, 2021, the employer may not apply the hours against the 80 hours under SB 95. But after January 1, 2021, the employer may credit the employee with those paid sick time hours and reduce the employee’s SB 95 paid sick leave allotment proportionally under the FFCRA, SB 95 or any local ordinance. And while SB 95 does not provide a tax credit like the Families First Coronavirus Response Act (“FFCRA”), the American Rescue Plan Act of 2021 (“ARPA”) provides that employers who voluntarily continue to offer Emergency Paid Sick Leave (“ESPL”) and/or Emergency Family and Medical Leave Expansion Act (“EFMLEA”) under the FFCRA will be eligible for federal tax credits/offsets or tax reimbursements through the September 30, 2021 date. Because the CSPSL and FFCRA ESPL eligibility requirements overlap, employers can continue to voluntarily offer FFCRA benefits and take advantage of the FFCRA overlapping credits, while also abiding by the new mandates under SB 95.
Because SB 95 is retroactive to January 1, 2021, any employee who took PTO for a reason that qualifies under SB 95 can request retroactive pay under SB 95 and the employer has until the next payday to make the retroactive payment to an employee. Such time can count toward the SB 95 80 hour benefits and be noted on the paystub to reduce the hours remaining.
 There are exceptions for workers who may be entitled to more than 80 hours, e.g. firefighters or in home caregivers scheduled for more than 80 hours of work in a pay period.
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EPPS & COULSON, LLP
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Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is considered advertising under laws of some states. Epps & Coulson, LLP encourages you to call us to discuss these matters as they apply to you or your business.