In a previous post, we explained Senate Bill 95, which requires employers with more than 25 employees in California to provide additional paid COVID-19 sick leave. you can read it here. SB 95 creates sections 248.2 and 248.3 of the California Labor Code. It comes into force on March 29, 2021 and apply retroactively as of January 1, 2021. This new COVID-19 additional paid sick leave law allows covered employees to take up to Additional 80 hours of paid sick leave related to COVID-19.
The labor commissioner recently job a list of frequently asked questions regarding SB 95. He also provided this attach, that all employers with 25 or more employees must display in a prominent place in the workplace, or must be broadcast to the workforce by electronic means if employees are telecommuting and not physically reporting to work. This blog highlights the FAQs that employers are most interested in. Since this new legislation will come into force on March 29, 2021 and expire on September 30, 2021, time is running out. Employers should seek legal advice as soon as possible to ensure compliance with this legislation.
Which employers are covered by SB 95?
All public or private employers with more than 25 employees are covered.
Which employees are covered?
An employee who works for a covered employer is entitled to additional paid COVID-19 sick leave if they cannot work or telecommute for some reason related to COVID-19.
What are the reasons an employee can take COVID-19 Additional Paid Sick Leave?
There are three main categories of reasons: (1) to take care of yourself; (2) caring for a family member; and (3) vaccine-related absence.
(1) Take care of yourself. An employee is entitled to COVID-19 additional paid sick leave if he or she is unable to work or telecommute because the employee is undergoing a period of quarantine or isolation related to COVID-19, has been notified by a health care provider to quarantine due to COVID-19 -19, or has symptoms and is seeking a medical diagnosis.
(2) Caring for a family member. An employee is entitled to additional paid COVID-19 sick leave if they are unable to work or telecommute because they are caring for a family member who is under a period of quarantine or isolation related to COVID-19, or the employee is caring for them for a child whose school or daycare is closed or unavailable due to COVID-19.
(3) Vaccine. An employee is entitled to additional paid COVID-19 sick leave if they are unable to work or telecommute because they are attending a vaccination appointment or experiencing vaccine-related symptoms.
Being subject to a general stay-at-home ordinance not qualify an employee for COVID-19 additional paid sick leave. Instead, quarantines and isolation periods must meet the definition or guidelines set forth by the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health unit that has jurisdiction over the. workplace.
What period does the SB 95 cover?
From January 1, 2021 to September 30, 2021. As explained below, as of March 29, the requirement to provide COVID-19 additional paid sick leave dates back to January 1, 2021, meaning that covered employees who have took eligible leave between January 1, 2021 and March 28, 2021, can request retroactive payment for this leave if it has not been paid by the employer in the amount required under SB 95.
When is an employer required to start paying COVID-19 additional paid sick leave?
The law comes into force on March 29, 2021. Employers must start paying for this specific sick leave no later than the payday of the next regular pay period. Therefore, some employers will need to be prepared to pay for the additional paid COVID-19 sick leave by the first full week of April 2021.
When Should an Employer Make Additional Paid COVID-19 Sick Leave Available to an Employee?
The leave must be granted to a covered employee upon oral or written request.
Can an employer require a medical certificate before granting a request for additional paid COVID-19 sick leave?
No. The leave is not subject to a medical certificate. However, in certain circumstances, it may be reasonable to request documents before paying the “sick” employee if the employer has other information that indicates the employee is not requesting additional paid sick leave COVID-19 for a valid reason.
When and how can an employee request retroactive payment for additional COVID-19 paid sick leave?
If a covered employee took COVID-19 related leave on or after January 1, 2021, for any of the qualifying reasons above, but did not receive the amount required by SB 95, the employee has the right to request retroactive payment equal to the amount of paid sick leave required under the new law. The employer’s obligation to pay this amount does not take effect until March 29, 2021. Thus, the employee must make an oral or written request for retroactive payment from March 29, 2021. A request before March 29 does not count. .
Once the employee requests it, the employer will have until pay day of the next full pay period to retroactively pay the amount of COVID-19 additional paid sick leave owed. For example, if an eligible employee took three hours of leave in February 2021 to attend an immunization appointment, the employee can make an oral or written request for three hours of retroactive paid leave.
What is the maximum amount of additional paid sick leave COVID-19 under SB 95?
The maximum number of paid holidays is 80 hours.
Is COVID-19 Additional Paid Sick Leave Calculated Differently for Full-Time and Part-Time Employees?
Yes. A covered employee who is considered full-time, or who worked or was expected to work an average of 40 hours or more in the two weeks preceding a COVID-19 related leave is entitled to 80 hours of paid leave.
If a covered part-time employee works variable hours, there is a formula to calculate the number of hours the employee is off work. For example, the average number of hours the employee has worked for the employer each day over the previous six months is multiplied by 14 to determine the number of hours attributable to the COVID-19 additional paid sick leave ’employee.
How Much is a Covered Employee Paid for COVID-19 Additional Paid Sick Leave?
For exempt employees, COVID-19 additional paid sick leave is calculated the same way the employer calculates other forms of paid leave.
For non-exempt employees, COVID-19 additional paid sick leave is paid at UPPER from the following:
- The employee’s regular rate of pay for the work week in which the leave is taken
- A rate calculated by dividing the employee’s total wages, excluding the overtime premium, by the total number of hours worked by the employee during the full pay periods of the 90 days of employment previous
- State minimum wage
- The local minimum wage
*** MAXIMUM AMOUNT ALERT *** An employer is not required to pay more than $ 511 per day and $ 5,110 in total to an employee covered specifically for COVID-19 additional paid sick leave. However, an employee can use other types of paid time off after reaching the maximum amount.
Does a retroactive payment of additional COVID-19 paid sick leave count as a credit towards the maximum amount?
Yes. Retroactive payment must be for leave between January 1, 2021 and March 28, 2021, the leave must have been for a reason qualifying above, and retroactive payment must be made at the correct rate described above.
What happens if the employer has already paid another additional benefit for sick leave related to COVID-19 before the effective date of SB 95, can the employer also receive a credit for additional paid sick leave for COVID-19?
Yes, but it’s more complex. In order for an employer to receive credit, the employee’s leave must have been for a qualifying reason. In addition, the employer must not have required the employee to use any other type of paid leave or vacation. In addition, the employer must have paid the legally required rate (that is to say, the highest rate) described above. If the rate paid was lower than the legally required rate, the employer may voluntarily retroactively pay the difference to the employee to receive credit. If an employee makes an oral or written request for such a “catch-up” payment, the employer must make the payment in the next pay period. Essentially, the employee is to receive the difference as if the previous paid leave had been treated as COVID-19 additional paid sick leave.
What if a local law requires paid sick leave related to COVID-19 to be paid at a different rate?
The employer must pay sickness benefits at the highest rate to ensure compliance with national and local legislation.
How should COVID-19 additional paid sick leave be shown on a salary statement or separate statement?
COVID-19 Additional Paid Sick Leave must be shown on a separate line on the employee’s itemized pay stub or on the separate paper provided to the employee to comply with California Sickness Benefits Law.
All California employers with more than 25 employees nationwide should review SB 95 and analyze its impact on the employer’s additional paid sick leave requirements. Since this new legislation will come into force on March 29, 2021 and expire on September 30, 2021, time is running out. Employers should seek legal advice as soon as possible in relation to this legislation.
The legal landscape continues to evolve rapidly and there is a lack of clear authority or clear rules on implementation. This article is not intended to be a unique and unequivocal guide, but rather represents our interpretation of the current and general state of applicable law. This article does not address the potential impacts of the many other local, state, and federal ordinances that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability for disease. employee, family leave requirements, sick pay and other issues.
Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.Revue nationale de droit, volume XI, number 88