On March 19, 2021, Governor Gavin Newsom signed into law Senate Bill 95, which created new COVID-19 Supplemental Paid Sick Leave (“Supplemental PSL”) requirements for all California employers with more than 25 employees during 2021. The new Supplemental PSL law has been codified in Labor Code sections 248.2 and 248.3.
California’s new Supplemental PSL law will go into full effect on March 29, 2021. It will remain in effect through September 30, 2021, and is retroactively enforceable all the way back to January 1, 2021.
California’s Supplemental PSL will apply to all employers with more than 25 employees.
A Covered Employee is any employee who is unable to work or telework for an employer because of any of the COVID-19-related reasons enumerated below.
What reasons for using Supplemental PSL?
A Covered Employee is any employee unable to work or telework because the Covered Employee:
- is subject to a quarantine or isolation period related to COVID-19;
- has been advised by a health care provider to self-quarantine due to COVID-19-related concerns;
- is attending an appointment to receive a COVID-19 vaccine;
- is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
- is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- is caring for a family member who is subject to an isolation or quarantine order or guidance, or who has been advised to self-quarantine; and
- is caring for a child whose school or place of care is closed or otherwise unavailable for COVID-19-related reasons.
How many Supplemental PSL hours are Covered Employees entitled to receive?
A Covered Employee is entitled to 80 hours of Supplemental PSL if:
- The employer considers the Covered Employee to work full time; and
- The Covered Employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the Covered Employee took Supplemental PSL.
Covered Employees who are not full-time employee:
- If the Covered Employee has a normal weekly schedule, the total number of hours the Covered Employee is normally scheduled to work for the employer over two weeks.
- If the Covered Employee works a variable number of hours, 14 times the average number of hours the Covered Employee worked each day for the employer in the six months preceding the date the covered employee took Supplemental PSL. If the Covered Employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the covered employee has worked for the employer.
- If the Covered Employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the total number of hours the Covered Employee has worked for the employer.
Does the Supplemental PSL replace California’s mandatory 3 days of PSL?
No, Supplemental PSL is in addition to any PSL that may be available to the Covered Employee.
Who determines how much Supplemental PSL to use?
Only Covered Employees may determine how many hours of Supplemental PSL to use, up to the total number of hours to which the Covered Employee is entitled. The employer must make the Supplemental PSL available or immediate use by the Covered Employee upon oral or written request.
Employers are not required to provide a Covered Employee more than the total number of hours of Supplemental PSL to which the Covered Employee is entitled.
How much pay are Covered Employees entitled to receive?
Each hour of Supplemental PSL shall be compensated at a rate equal to the following:
Nonexempt employees shall receive the highest of the following:
- The Covered Employee’s Regular Rate of Pay;
- Covered Employee’s 90-day average;
- State minimum wage; or
- Local minimum wage.
Exempt employees shall be compensated in the same manner as the employer calculates wages for other forms of paid leave time.
Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a Covered Employee for Supplemental PSL.
Can employers require employees to use all available PTO prior to using Supplemental PSL?
Employers may not require a Covered Employee to use any other paid or unpaid leave, PTO, or vacation time provided by the employer to the Covered Employee before the Covered Employee used Supplemental PSL or in lieu of Supplemental PSL.
Does Supplemental PSL satisfy Cal/OSHA’s new COVID-19 pay requirements?
Yes, Supplemental PSL pay satisfies Cal/OSHA’s Emergency Temporary Standards requiring employers to maintain an employee’s earnings when excluded from the workplace due to COVID-19-related concerns.
How do I have to notify my employees of their available Supplemental PSL?
Available Supplemental PSL must be included on an employee’s pay stubs as a separate item from California’s mandatory 3 days of PSL. If an employee works variable hours, their available Supplemental PSL value shall indicate “(variable)”. Employers must provide a Covered Employee an updated calculation upon request to use Supplemental PSL or requests relevant records.
Raimondo & Associates will continue to monitor these mandates and guidance and provide updates as necessary.