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California enacts state-wide extension and retroactive application of COVID-19 supplemental paid sick leave with Senate Bill 95

United States Publication April 2021

As of March 29, 2021, California employers with more than 25 employees must provide paid sick leave specifically for employees who are unable to work or telework for any one of seven reasons related to COVID-19:

  1. An order or guidelines of the Department of Public Health, the CDC, or local public health officer requiring self-quarantine or self-isolation;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is attending an appointment to receive a COVID-19 vaccine;
  4. The employee is experiencing symptoms related to the vaccine that prevent the employee from being able to work or telework;
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  6. The employee is caring for a family member who is subject to a self-quarantine or isolation order described in (1) above or has been advised to self-quarantine as described in (2) above;
  7. The employee is caring for a child whose school or child care is closed because of COVID-19 on the premises.

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. Part-time employees are entitled to paid leave for the number of hours in a two-week period if they have a normal weekly schedule. Employees with variable schedules are entitled to hours according to a formula based on the number of hours they worked prior to the date they took COVID-19 leave.

The obligations under Senate Bill 95—which has been codified at Labor Code section 248.2— apply retroactively to January 1, 2021 and expire September 30, 2021. An employee who took unpaid leave for reasons that are covered by SB 95 may request retroactive payment for unpaid leave the employee took from January 1, 2021 through March 28, 2021. An employer must make the retroactive payment by the payday for the next pay period after the request is made. The retroactive provision of COVID-19 paid leave counts as a credit toward the employer's maximum obligation under the law (e.g., 80 hours for full-time employees).

The new law contains detailed provisions on the rate of pay at which the COVID-19 paid sick leave must be paid (possibly, but not necessarily, the regular rate of pay for the workweek regardless of whether overtime is worked), and a cap of US$511 per day and US$5,110 in the aggregate, unless Congress enacts new emergency paid sick leave legislation with a larger cap.

COVID-19 supplemental paid sick leave must be set forth separately from regular paid sick on an itemized wage statement pursuant to Labor Code section 246(i).

Finally, the Labor Commissioner has issued a helpful set of FAQs on this new law. Of note, a general stay-at-home order does not entitle an employee to paid leave. Rather, "[t]he order or guidelines must be specific to the covered employee's circumstances … For example, guidelines or an order of a local health officer that directs individuals who live with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking 2021 COVID-19 Supplemental Paid Sick Leave."

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