COVID-19 Response: California Governor Signs Retroactive Paid COVID-19 Sick Leave Bill
Los Angeles, Calif. (March 25, 2021) - On March 19, 2021, California Governor Gavin Newsom revived and expanded the COVID-19 related supplemental paid sick leave (SPSL) law that expired on December 31, 2020. Senate Bill (SB) 95 codifies SPSL through newly enacted Labor Code sections 248.2 and 248.3. The new sections place additional requirements on employers beyond existing paid sick leave requirements, apply retroactively, and require employers to provide back payments to their employees.
The new law applies retroactively to January 1, 2021 and is set to expire on September 30, 2021. Below is a summary of the requirements imposed on employers effective immediately, with a short grace period (until March 29, 2021) for compliance.
Who Is Covered Under Labor Code Section 248.2?
Labor Code section 248.2 requires employers to provide employees with SPSL for COVID-19 related absences in addition to existing benefits such as vacation or statutory paid sick leave unrelated to COVID-19. Section 248.2 covers more employers and features broader leave requirements than California’s prior SPSL law, which expired on December 31, 2020. Unlike the prior law, which covered only employers with 500 or more employees, the new law applies to employers (including public entities) with more than 25 employees.
Section 248.2 covers all employees, and allows them to use SPSL to care for family members, including children, grandchildren, parents, grandparents, siblings, and spouses. Moreover, employees are permitted to take paid leave whenever they are unable to telework, meaning that Section 248.2 applies even to employees who work remotely.
Labor Code section 248.3 mandates that providers of in-home supportive and/or personal care services also receive SPSL.
What Types of Leave Are Covered Under Section 248.2?
Section 248.2 greatly expands coverage from California’s old SPSL law, to include employees who:
- are subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer with jurisdiction over the workplace;
- have been advised by a healthcare provider to self-quarantine related to COVID-19;
- are attending a COVID-19 vaccine appointment;
- are experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
- are experiencing COVID-19 symptoms and seeking a medical diagnosis;
- are caring for a family member who is subject to a quarantine or isolation order or guidelines related to COVID-19, or who has been advised to self-quarantine by a healthcare provider; or
- are caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
How Much Leave Must Be Provided to Employees Under Section 248.2?
Similar to the former SPSL, the amount of leave that must be provided to employees under Section 248.2 varies as follows:
- Full-time employees receive 80 hours of leave if (1) the employer considers them to work full time; or (2) they worked or were scheduled to work at least 40 hours per week, on average, in the two weeks preceding the date they took leave.
- Non-full-time employees with a normal weekly schedule receive the total number of hours they are normally scheduled to work over two weeks.
- Employees who work a variable number of hours and whose tenure is six months or more, receive 14 times the average number of hours they worked each day in the six months preceding their leave date.
- Employees who have worked fewer than six months, but more than 14 days, receive 14 times the average number of hours they worked each day over their entire period of employment.
- Employees who have worked 14 days or fewer receive leave in the amount of their total number of hours worked.
Of note, the amount of paid leave employees already received in 2021 prior to the enactment of Section 248.2 may qualify as an offset that wholly or partially satisfies an employer’s SPSL obligations. If an employee has been paid another benefit (in an amount greater than or equal to that which the new law requires, as discussed below) for leave taken on or after January 1, 2021 for the new law’s covered reasons, the employer may count the hours paid toward the number of hours of SPSL required under the new law. However, employers cannot count paid sick leave employees used under California's Healthy Workplaces, Healthy Families Act, or under the 2020 SPSL law.
For qualifying supplemental benefits paid in 2021 that were paid at a rate lower than that required by the new law, employers must “true-up” (i.e., increase retroactively) the pay to what the new law requires, such that the leave qualifies for the offset. If a payment is made pursuant to an employee’s oral or written true-up request, payment must be made on or before the payday for the next full pay period after the request.
Additionally, as noted above, Section 248.2 features a retroactivity provision. If an employee took leave for a covered reason between January 1, 2021 and the effective date of the new law, an employer could be required to apply the provisions of the law, including paying an employee for unpaid time off at the employee’s request.
What Is the Rate of Pay for Leave Under Section 248.2?
Unlike California’s old SPSL law, section 248.2 specifies that nonexempt employees must be paid at the highest of (1) their regular rate during the workweek in which they take the leave; (2) the total wages (not including overtime), divided by the total hours worked in the past 90 days of employment; or (3) the state or local minimum wage. Exempt employees should be paid through the same method at which they are normally paid leave.
The new law also tracks the Families First Coronavirus Response Act’s daily cap of $511, and aggregate cap of $5,110. However, Section 248.2 allows employees who max out because of the pay caps to use other available paid leave they have available (“top up”) so they are fully compensated during the absence.
What Are the Notification and Paystub Requirements Under Section 248.2?
As with the previous (non-food sector) version of the SPSL law, Section 248.2 requires employers to provide the available leave balance on employees’ wage statements or in a separate writing. For part-time employees without a regularly set schedule, employers may meet their paystub obligations by performing an initial calculation of available SPSL and noting “variable” next to that calculation. Moreover, any retroactive SPSL payments must be noted on an employee’s paystub for the pay period during which the payment is made.
By March 26, 2021 (within one week of the date of enactment), the state labor department must make a model poster publicly available, which employers must conspicuously display in their workplaces or electronically for remote employees.
Ensuring Compliance with Labor Code Section 248.2
As discussed above, Labor Code Section 248.2 is effective immediately. However, covered employers receive a short grace period, until March 29, 2021, to ensure compliance with the new law. Because of the tight deadline and mandatory pay obligations, which vary from those under California’s old SPSL law, employers should consult Lewis Brisbois’ knowledgeable employment counsel to discuss the best way to navigate these requirements moving forward.
For more information on this new law, contact the author or editor of this alert, or visit our Labor & Employment Practice page to find an attorney in your area. You can also visit our COVID-19 Response Resource Center for more alerts on the many areas of law impacted by the pandemic.
Margaret Wright, Associate
Thalia S. Rofos, Partner