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CA Law Update – COVID-19 Supplemental Paid Sick Leave

A close up of the word sick leave in a dictionary
CA Law Update – COVID-19 Supplemental Paid Sick Leave

On March 19, 2021, California Governor Gavin Newsom signed legislation (SB 95) providing 80 hours of COVID-19 supplemental paid sick leave (COVID-19 SPSL) for covered employees who are unable to work or telework (work) because:

  • Of a COVID-19 quarantine or mandatory isolation order (order) issued by the state or a healthcare provider.
  • They are attending a COVID-19 vaccination appointment.
  • They are experiencing symptoms from a COVID-19 vaccination that prevents them from working.
  • They are seeking a medical diagnosis for their COVID-19 symptoms.
  • A family member they care for is subject to an order or must self-quarantine.
  • Their child’s place of care or school is closed because of COVID-19.

Full-time employees, and those who were scheduled to work (on average) at least 40 hours per week in the two weeks before they took COVID-19 SPSL, are entitled to 80 hours of COVID-19 SPSL leave. Part-time employees:

  • With a regular weekly schedule are entitled to COVID-19 SPSL that equals the number of hours they are normally scheduled to work over two weeks.
  • With variable schedules are entitled to COVID-19 SPSL that equals 14 times the average number of hours worked per day over the past six months.

Non-exempt employees must be paid the highest of the following for each hour of leave:

  • Regular rate of pay for the workweek in which leave is taken.
  • State minimum wage.
  • Local minimum wage.
  • Average hourly pay for preceding 90 days (not including overtime pay).

Exempt employees must be paid the same rate of pay as wages calculated for other paid leave. However, SPSL cannot exceed $511 per day and $5,110 in total for 2021 COVID-19 SPSL.

COVID-19 SPSL is in addition to any other paid sick leave employees are entitled to receive and employers cannot require that they use other paid or unpaid leave, paid time off, or vacation time before they use COVID-19 SPSL or instead of using it, except when the employer provides them another supplemental benefit for COVID-19 purposes. Of note, small businesses (with 25 or fewer workers) are exempt from the law but may choose to offer supplemental paid sick leave and receive a federal tax credit if they are eligible for it.

The law is effective March 19, 2021 through September 30, 2021 and is retroactive to sick leave taken beginning January 1, 2021. However, the requirement to pay the COVID-19 SPSL doesn’t start until March 29, 2021 because the state granted employers a grace period before requiring them to pay this leave and:

  • The period the COVID-19 SPSL covers is January 1, 2021 through September 30, 2021 even though the law was signed in March; and
  • Covered employees who took qualifying leave between January 1, 2021 and March 28, 2021, can request payment for that leave if it was not paid by their employer in the amount that is required under this law. 

See the Department of Industrial Relations FAQs and the mandatory workplace poster for further guidance.