On March 19, 2021, Governor Newsom approved SB 95, which requires COVID-19 supplemental sick leave through September 30, 2021 and creates new COVID-19 vaccine–related paid sick leave obligations for covered employers. The new law, which adds Sections 248.2 and 248.3 to California’s Labor Code, is effective immediately, but the employer obligation to provide COVID-19 supplemental paid sick leave does not take effect until March 29 (10 days after the date of enactment). It is important to note that the obligation to provide supplemental paid sick leave is retroactive to January 1, 2021, which means employers may owe back pay to employees who took covered leave on a previously unpaid basis, following the December 31, 2020 expiration of California’s previous supplemental sick leave legislation, discussed here.

The requirement is in addition to California’s mandated paid sick leave and may be used by covered employees upon oral or written request. An employee cannot be required to use any other paid or unpaid leave, time off, or vacation before the supplemental sick leave. The Labor Commissioner has developed a poster that employers are required to display or disseminate regarding the new requirements.

Below are the key components of SB 95:

  • Permits use of the leave for additional reasons, including creating a new right to use leave to attend a vaccine appointment and experiencing symptoms related to the vaccine that prevents the employee from being able to work or telework.
  • New calculation of applicable pay rate—covered nonexempt employees are to be compensated for each hour of supplemental paid sick leave at the highest rate of the following: (a) the regular rate of pay for the workweek in which the covered employee uses supplemental paid sick leave, whether or not the employee actually works overtime in that workweek; (b) dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment; (c) the state minimum wage; or (d) the local minimum wage to which the covered employee is entitled. (Covered exempt employees are paid for this time off in the same manner as for other forms of paid leave time.)
  • Both supplemental sick leave and any associated retroactive payments must be on a wage statement and listed separately from regular sick leave. This must be included on wage statements for the next full pay period following the date the section takes effect.
  • Any time taken or paid based on California’s 2020 COVID-19 Supplemental Paid Sick Leave is separate; SB 95 authorizes a new 80 hours, even if an employee’s use of supplemental COVID-19 sick leave started last year and bridged into January 2021.
  • Retroactive payments need to be paid on or before the payday for the next full pay period after the request by the employee and are not due if the employer provided paid time off for qualifying reasons via a separate supplemental employee benefit plan in an amount equal to or greater than the amount of compensation the employee would be entitled to under the new 2021 COVID-19 Supplemental Paid Sick Leave law.
  • An employer may require a covered employee to first exhaust the 2021 COVID-19 Supplemental Paid Sick Leave to satisfy the requirement to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure under the Cal-OSHA COVID-19 Emergency Temporary Standard, discussed here, or the Cal-OSHA Aerosol Transmissible Diseases Standard.

The California Labor Commissioner has published FAQs regarding the 2021 COVID-19 Supplemental Paid Sick Leave. Given the focus on wage-and-hour litigation in California, we recommend careful attention to calculation and recordkeeping regarding all leave requests.