On March 19, 2021, Governor Gavin Newsom signed a new COVID-19 Supplemental Paid Sick Leave (“SPSL”) into law. The new SPSL is similar to California’s previous COVID-19 Supplemental Paid Sick Leave law that expired on December 31, 2020 but contains substantial differences. The SPSL will go into effect on March 29, 2021 and is retroactive to January 1, 2021.
Covered Employers. All employers with twenty-six or more employees are covered by the new SPSL. The previous SPSL only covered employers with 500 or more employees nationwide. Firefighters and providers of in-home supportive services are subject to separate obligations.
Qualifying Employees. The new SPSL makes significant changes to the qualifying reasons available for paid leave. Most notably, the new law adds five additional qualifying reasons for the leave. Under the new SPSL, employees are eligible for paid leave if they are unable to work or telework for one of the following reasons:
- The employee is subject to a quarantine or isolation period related to COVID-19;
- 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;
- 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 who is subject to a quarantine or isolation period or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19; or
- The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
Amount of Leave. Full-time employees – those that worked or were scheduled to work forty hours per week in the two weeks prior to taking SPSL leave – are eligible for up to eighty hours of SPSL leave. Part-time employees are eligible for the total number of hours they are normally scheduled to work over two weeks. If a part-time employee works a variable number of hours, then he or she is eligible for fourteen times the average number of hours he or she worked each day over the previous six months.
Amount of Pay. Nonexempt employees must receive SPSL leave at the highest of the following:
- Their regular rate of pay;
- Their total wages, not including overtime premium pay, divided by their total hours worked in the full pay periods of the prior 90 days of employment;
Exempt employees must receive pay in the same amount as the employer calculates wages for other forms of paid leave time.
Like the previous SPSL, pay is capped at $511 per day and $5,110 in the aggregate. However, if subsequent federal legislation increases the maximum amounts, then the federal maximums will apply to SPSL. In other words, the maximum amount of SPSL pay will match any federal COVID-19 paid sick leave that provides for a higher figure.
Interaction with Other Employer Provided Sick Leave. Paid leave under the SPSL is in addition to any other paid sick leave provided by the employer. Moreover, employers cannot require an employee to use any other paid or unpaid leave, paid time off, or vacation before using SPSL or in lieu of.
Interaction with Other COVID-19 Leave Entitlements. Leave provided to an employee under a different COVID-19 paid leave law after January 1, 2021, will count against an employee’s SPSL leave if the leave is available for the same reasons and provides pay at the same rate as SPSL. For example, if a full-time employee receives ten hours COVID-19 paid leave under the FFCRA or a local ordinance for reasons covered by the SPSL, then the employee will be eligible for ten less hours of SPSL leave.
Interaction with Cal/OSHA Exclusion Pay. Under the Cal/OSHA Emergency Standards, employers must continue the benefits of employees who are excluded from the workplace due to COVID-19 exposure. The new SPSL provides that employers may require employees to first exhaust their leave under the SPSL before receiving exclusion pay. Thus, SPSL is not in addition to exclusion pay under the Cal/OSHA Emergency Standards.
Notice & Paystub Requirements. Employers are required to provide notice to employees of their right to SPSL. The notice may be provided by email or other electronic means for employees who do not frequent the workplace. The Labor Commissioner will issue a model notice shortly.
An employee’s SPSL leave must also be reflected on itemized wage statements. It must be set forth separately from regular paid sick pay. For part-time employees and employees with variable schedules, the wage statement requirement is met by doing an initial calculation of SPSL leave available and indicating “(variable)” next the calculation. Employers must still provide an updated calculation when an employee requests SPSL or payroll records under Cal. Lab. Code § 247.5.
Retroactivity. The new SPSL applies retroactively to January 1, 2021. Upon request, employers are required to provide retroactive payments to employees who would have been eligible for SPSL. Employers are only required to provide this retroactive payment if the employee did not receive compensation equal to the amount he or she would be entitled to under the SPSL. The retroactive pay is due on or before the payday for the net full pay period after the employee’s request. Any retroactive SPSL received by an employee counts against his or her total SPSL eligibility.
Expiration Date. The new SPSL expires on September 30, 2021.
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP