Erick Becker, Senior Partner
California recently reinstituted the requirement to pay employees unable to work for COVID related reasons. The new law (SB 95) goes into effect on March 29, 2021 and is effective through September 30, 2021.
Like last year’s federal COVID paid sick leave law (FFCRA), full time employees are eligible to take up to 80 hours of paid leave. This is in addition to any paid leave they took last year for COVID related reasons under FFCRA or the original California Supplemental Paid Sick Leave (CSPSL). Part time employees are eligible for a prorated amount of leave.
Employees can request leave, orally or in writing, for any of the following reasons:
1) they have COVID symptoms and are seeking diagnosis,
2) are subject to quarantine,
3) are caring for a family member with COVID,
4) are caring for a child unable to attend school on premises due to a COVID closure, or
5) are absent to receive vaccination or are ill from side effects due to vaccination.
There are major differences between SB 95 and FFCRA and the original CSPSL, however.
- SB 95 only covers employers with 26 or more employees.
- Employees that are teleworking are eligible for leave when quarantined.
- Eligibility is extended to vaccine related absences.
- Employees cannot be required to show documentation of their reason for absence unless the employer suspects the employee is falsely using leave.
- Employees must request to use their leave, the employer cannot automatically charge absence against SB 95 leave (unless the employee is absent due to work exposure and entitled to pay under the Cal OSHA COVID standard).
- Sick pay under the California Healthy Families Act (the regular 24 hours of sick pay) does not count against the 80 hours mandated by SB 95.
The application of SB 95 is retroactive to January 1, 2021, meaning that if an employee was absent for one of the covered reasons and was not paid, the employer may be required to retroactively pay up to 80 hours. Since the employee must request to use their leave, the employer does not have to go back and automatically pay employees who took leave between January 1 and March 29, or ask them if they want to be paid. If an employee makes an oral or written request for retroactive pay, however, the pay must be provided by the pay date for the next full pay period after the request is made.
If an employer did pay for a COVID related leave prior to March 29, that may be a credit against the SB 95 required pay. For instance, where the employer paid under the extended FFCRA tax credit or paid as required by the Cal OSHA COVID guidelines, that would be an offset. However, payment of PTO, Health Families sick leave, or vacation would not be an offset.
Finally, employers must post a notice regarding SB 95 by March 26. By the next pay period following March 29, employee pay stubs must include on the pay stub the number of SB 95 sick leave hours the employee has available. This must be listed separately from the regular Health Families sick leave available.
There will undoubtedly be questions and issues that arise regarding practical implications of this new law. Please contact Erick Becker if you want to discuss the effect of SB 95 on your business.
If you would like to have a discussion or consultation on the comments made in this article, please reach out to ebecker@cwlawyers.com to set up a time to discuss.
