A: California employers (including public entities) with more than 25 employees nationally.
Q. Who is eligible for the SB 95 leave?
- They are “subject to a quarantine or isolation period related to COVID-19” as defined by an order or guidelines of the California Department of Public Health, the U.S. Centers for Disease Control and Prevention, “or a local health officer who has jurisdiction over the workplace.”
- A health care provider has advised the covered employee to self-quarantine because of COVID-19–related concerns.
- The covered employee “is attending an appointment to receive” a COVID-19 vaccine.
- The covered employee “is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.”
- The covered employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
- “The covered employee is caring for a family member… who is subject to an order or guidelines described” in qualifying reason (1), or who a health care provider has advised to self-quarantine, as described in qualifying reason (2). For purposes of this provision, family members include spouse, registered domestic partner, parent (including parents-in-law), child (regardless of age or dependency), grandparent, grandchild, and sibling.
- The covered employee “is caring for a child … whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.”
Q. How much SB 95 leave is required for full-time employees?
Q. How do employers calculate the amount of SB 95 leave for part-time employees?
A. Part-time covered employees generally are entitled to the amount that correlates with the number of hours the employee regularly works over 2 weeks. The amounts are calculated as follows:
- “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 COVID-19 supplemental paid sick leave. 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 that employer.”
Q. Is SB 95 leave in addition to paid leave employers voluntarily provide employees?
Q. Is SB 95 leave in addition to paid leave required by local ordinances?
Q. Can an employer require an employee to use other paid leave, unpaid leave or time off before using SB 95 leave?
Q. Can an employer require employees to use SB 95 leave?
A. The employer can require that an employee exhaust SB95 leave before paying exclusion pay under the California Division of Occupational Safety and Health (Cal-OSHA) COVID-19 Emergency Temporary Standards (ETS) or Cal-OSHA Aerosol Transmissible Diseases Standard. Otherwise, the employee may choose the number of hours of SB 95 leave to use and when to use it, up to the number of hours for which the employee is eligible.
Q. When is the law effective?
A. It’s effective March 29, but retroactive to January 1, 2021.
Q. Do employers get any credit for leave voluntarily provided pursuant to the Families First Coronavirus Response Act (FFCRA) or local law after January 1, 2021?
Q. Do employers get any credit for leave provided to the FFCRA in 2020?
A. No. Employers may not credit paid leave they provided employees for COVID-19–related reasons in 2020.
Q. How do employers handle SB 95 leave that was taken for qualifying reasons between January 1, 2021 and March 29, 2021?
A. Covered employees who took unpaid leave for qualifying reasons between January 1, 2021 and March 29, 2021 can ask to use SB 95 leave and employer must pay the employee for it.
Employers must provide retroactive payment for qualifying leave taken since January 1, 2021 once the employee makes an oral or written request for such payment. Employers must make this payment on or before the payday for the next full pay period after the employee makes the oral or written request.
Covered employees who took paid leave for qualifying reasons can ask to use this leave and the employer must replenish the hours of paid leave used for the qualifying reason.
Q. What rate of pay does an employer use to determine the amount due for SB 95 leave?
A. For nonexempt employees, the employer must pay the higher of:
- the employee’s “regular rate of pay for the workweek in which” the leave was taken, regardless of whether the employee worked overtime in that workweek;
- “the covered employee’s total wages, not including overtime premium pay, [divided] by the employee’s total hours worked in the full pay periods of the prior 90 days of employment”;
- the California minimum wage; or
- the local minimum wage.
Q. Do employers have to include information on the employee’s wage statement?
A. Yes. The employee’s wage statement must separately list the hours of SB 95 leave available. If used, the employee’s wage statement must separately list the rate of pay and wages paid for SB 95 leave. The paystub requirement is not enforceable until the next full pay period following the date that the law takes effect (March 29, 2021).
For part-time, variable hour employees (part-time employees who don’t have a regularly set schedule), SB 95 allows employers to meet their paystub obligations by performing an initial calculation of leave available and indicating “(variable)” next to that calculation, which employers will need to update when employees request to use SB 95 leave.
In addition, if an employer makes payments for leave employees used before SB 95 took effect, the retroactive payment must be on the paystub for the pay period during which payment is made.
Q. Do covered employers have to post notice of SB 95 leave entitlements?
A. Yes. Covered employers must post a notice of the COVID-19 SPSL requirements in a conspicuous place in the workplace. A model notice can be found here. “[I]f an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement … by disseminating notice through electronic means,” such as email.
Q. How long must employers offer SB 95 leave?
A. Employers must offer SB 95 leave through September 30, 2021. If an employee is using SB 95 leave on September 30, however, and the absence would continue without interruption past September 30, the employee gets to continue using available SB 95 leave for that absence.
Tammy Somogye concentrates her practice on education and employment law, representing educational institutions, municipalities and businesses. In addition to handling administrative proceedings, conducting ...
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