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*New* COVID-19 Paid Sick Leave Law

Late Friday, Governor Gavin Newsom signed legislation that mandates the addition of up to 80 hours of employer-paid COVID-19 sick leave. The new law goes into effect on March 29, 2021, but is retroactive to January 1, 2021, and expires on September 30, 2021.

The new law applies to employees who work for any employer with more than 25 employees.

The most important thing employers need to be aware of with respect to this new mandate is that this new bank of 80 hours of leave is in addition to any leave an employee took in 2020 under the federal Families First Coronavirus Response Act or AB 1867 and in an addition to state mandated Paid Sick Leave.

Qualifying Reasons for Leave

There are new qualifying reasons for the leave, including getting the vaccine and recovering from symptoms related to the vaccine. Now, employees may take paid sick leave if they are unable to work or telework because they are:

  • Subject to a quarantine or isolation period related to COVID-19

  • Advised by a health care provider to self-quarantine

  • Attending an appointment to receive a COVID-19 vaccine

  • Experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework

  • Experiencing symptoms of COVID-19 and seeking a medical diagnosis

  • Caring for a family member who is subject to an order or guidelines, or who has been advised to self-quarantine

  • Caring for a child whose school or place of care is closed for COVID-19 reasons

Employers cannot request a medical certification before granting COVID-19 supplemental paid sick leave. Employees are entitled to take leave immediately upon their request.

Leave Amounts

Full-time employees are eligible for 80 hours of COVID-19 supplemental paid sick leave.

Part-time employees are eligible for an amount of leave equal to the number of hours they are normally scheduled to work in two weeks.

Rate of Pay

The amount of pay is capped at $511 per day and $5,110 total per employee.

Leave Interactions

The new law provides a fresh bank of paid leave, in addition to already existing paid sick leave under California’s Healthy Workplaces, Healthy Families law. Employers cannot require an employee to use other paid or unpaid leaves before the employee uses COVID-19 supplemental paid sick leave.

The bill specifically addresses Cal/OSHA’s COVID-19 Emergency Temporary Standard, stating that in order for employers to comply with the standard’s requirement to maintain the earnings of employees exposed to COVID-19 and excluded from the workplace (also referred to as exclusion pay), employers may require an employee to first exhaust their COVID-19 supplemental paid sick leave.

The law also contains an offset provision stating that if an employer has already provided an employee with supplemental paid leave after January 1, 2021, for any of the qualifying reasons included in this law, and the amount is equal to or greater than that required by this law, then the employer may count the hours of the other paid benefit or leave towards the new requirement. But, because SB 95 provides a fresh bank of leave, any leave granted last year does not count towards the new leave obligations.

Notice and Wage Statements

Employers are required to provide notice to their employees informing them of their rights to supplemental paid sick leave under the new law. The Labor Commissioner created the attached model notice that employers may use for this purpose. Employers may download the posters and distribute as appropriate, including sending the notice electronically to employees who are telecommuting. Employers need to provide notice before March 29, 2021.

Additionally, the COVID-19 supplemental paid sick leave must be reflected on employees’ wage statements. The new law specifies that the COVID-19 supplemental paid sick leave must be set forth separately from other paid sick days. For employees with part-time or variable schedules, the law allows employers to do an initial calculation of leave time available with the notation “variable” next to it. Employers must still provide updated calculations when employees request to use their COVID-19 supplemental paid sick leave.

Retroactive Payments

The employee must initiate the retroactive payment by submitting an oral or written request. The payment must be paid on or before the payday for the next full pay period after the oral or written request by the employee and must be reflected on the applicable wage statement. Any such retroactive payment will count towards the total number of COVID-19 supplemental paid sick leave required by this law

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