The new California COVID-19 Supplemental Paid Sick Leave (SB-95) went into effect on March 29, 2021. Retroactive to January 1, 2021, the new law ushers in significant new employer responsibilities.

In addition to other significant departures from last year’s COVID-19 Supplemental Paid Sick Leave, the new program expands the range of covered employers from those with 500 or more employees to those with more than 25 employees.

Background

Back in September, Governor Newsom signed AB-1867, which required certain employers to provide additional hours of paid sick leave to eligible employees affected by COVID-19.

The law applied to businesses with 500 or more employees, and eligible employees included those who left home for work and were either subject to a mandated quarantine order, advised to self-isolate by a health care provider, or required by their employer to stay home to prevent transmission of the virus.

AB-1867, which expired on December 31, provided eligible full-time employees with up to 80 hours of this COVID-19 related leave when applicable.

The New COVID-19 Supplemental Paid Sick Leave

The new law includes some similar provisions as AB-1867:

• Employers must offer eligible full-time employees up to 80 hours of COVID-19 supplemental paid sick leave.

• Covered employees are still eligible if they have to quarantine due to a government health authority’s order or guidelines, or if they are advised to isolate by a health care provider. [1]

However, the new law expands the provisions of its predecessor in a variety of ways:

• Employers with more than 25 employees are now required to offer COVID-19 supplemental paid sick leave when applicable.

• Teleworking employees are now eligible for this leave (not just those who typically leave home for work).

• The new law also adds that employees may now be eligible if they 1) need time off to get vaccinated, 2) are sick due to symptoms of the vaccine, 3) are experiencing COVID-19 symptoms and must visit a doctor to seek diagnosis, 4) are providing care for a quarantining family member or 5) must take care of a child whose school is closed due to COVID-19 exposure.

Next steps & additional considerations for employers

• Covered employers must provide this notice to employees.

• The new law requires that employers note COVID-19 supplemental paid sick leave on pay stubs, which was a previous requirement. SB-95 clarifies that wage statements must itemize this leave as separate from other types of sick leave.

• Employers should be aware that, because SB-95 is retroactive to January 1, some employees who were previously given unpaid leave for COVID-19 related reasons may now be due compensation if they request it.

• Employers with 500 or more employees should note that the 80 hours of paid leave in SB-95 come in addition to those hours provided in AB-1867. This means that even if an employee took COVID-19 supplemental paid sick leave in 2020, they still may be eligible for an additional 80 hours of such leave in 2021.

[1] The new law does not mention employer responsibility to provide paid leave when the employer orders an employee to stay home to prevent transmission of the virus, which was a requirement in AB-1867. However, the Cal/OSHA Emergency Temporary Standards require that employers continue paying employees exclusion pay in such cases. The new law provides clarification that an employer may require an employee to first exhaust their COVID-19 supplemental paid sick leave before they are entitled to exclusion pay under the Cal/OSHA Emergency Temporary Standards.

Author: Margarita Wear, Partner, and Penina Eilberg-Schwartz, Project Manager/Paralegal

The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace and Title IX investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly at info@maierlawgroup.com.