California recently passed SB 95, a Supplemental Paid Sick Leave (SPSL) law providing up to 80 hours of COVID-related sick leave for employees. All California employers with more than 25 employees, regardless of location, in both public and private sectors, must offer this leave.
Under SB 95, employers must begin granting SPSL and responding to requests for retroactive SPSL pay, on March 29, 2021. The covered period for these SPSL leaves is from January 1, 2021 through September 30, 2021.
The Department of Industrial Relations has released FAQs that we strongly encourage employers to review as soon as possible.
SPSL vs. FFCRA
California’s SPSL is completely separate from the federal FFCRA (now ARPA-extended) leave we are already familiar with. The FFCRA is 1) a Federal law and 2) optional. On the other hand, SB 95 is a CA law and mandatory for eligible employers.
Additionally, employers are able to claim tax credits to offset the cost of FFCRA emergency sick leaves. SB 95 does not provide any tax credits to cover the cost of this mandatory leave.
However, offering voluntary leaves such as FFCRA can offset employees’ SPSL entitlement. (More on that below!) As a result, it will be in most employers’ best interest to offer the voluntary FFCRA leaves and receive tax credits for these as if they choose not to offer the FFCRA leaves they will still need to provide SB 95 sick leave (only they won’t get tax credits for it!).
Reasons for Leave
An employee is entitled to SPSL (“covered”) if they are unable to work or telework for any of the following reasons:
- Caring for Themselves: The covered employee is subject to a quarantine or isolation period related to COVID-19. This could be by order or guidelines from the California Department of Public Health, CDC, or a local health officer with jurisdiction over the workplace, if a healthcare provider advised the employee to quarantine, or if the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
- Caring for a Family Member: The covered employee is caring for a family member who is subject to a COVID-19 quarantine or isolation period, has been advised by a healthcare provider to quarantine due to COVID-19, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
- Vaccine-Related: The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms.
Amount of Leave
Employees are generally entitled to the following leave amounts:
- Full-time employees (or those who work 40+ hours per week in the two weeks prior to taking leave) get up to 80 hours.
- Part-time employees with a regular weekly schedule get the number of hours they would normally work over two weeks.
- Part-time employees with variable schedules get 14 times the average number of hours worked per day over the six months immediately before taking SPSL, or over their entire period of employment if they have worked for fewer than six months.
Rate of Pay
When taking SPSL, non-exempt employees must be paid the highest of the following:
- Their regular rate of pay for the workweek in which leave is taken
- The state minimum wage
- Local minimum wage
- Average hourly pay for preceding 90 days (not including overtime pay)
Employers must pay exempt employees the same rate of pay they would for other paid leave time.
Note: Payout for each employee is capped at $511 per day and $5,110 in total for SPSL.
Offsetting an Employee’s SPSL Entitlement
As mentioned earlier, the new SPSL allows for employers to “receive a credit” toward the hours owed to an employee if they provide or provided the same employee with another form of COVID-specific leave after January 1, 2021. Additionally, the leave provided must have been used for a covered reason under the SPSL law.
For example, since ARPA again created a voluntary extension of FFCRA paid sick leaves, if an employer voluntarily provided this leave between January 1 and March 28, 2021, they could subtract the number of hours of federal EPSL an employee took from their SPSL entitlement. Employers can do the same thing with local COVID-specific sick leave entitlements.
Note: The credit does not apply to regular California state sick leave because it is not COVID-specific. Additionally, it does not apply if the employer allowed or required the employee to use PTO, vacation, or other non-COVID leave to cover their hours.
Retroactive Pay for Leaves Between January 1 and March 28
If a covered employee took leave between January 1, 2021 and March 28, 2021, for one of the qualifying reasons under the new SPSL, but did not receive pay for this leave in the amount required under this law, they have the right to ask their employer for a retroactive payment equal to the amount required.
After the employee makes the oral or written request, the employer will have until the payday after the next full pay period to pay the retroactive SPSL.
Documentation from Employees
Under SB 95, employees may take SPSL immediately upon oral or written request. Further, employers may not require workers to provide medical certification or proof of their need for leave. There is an exception if the employer has a reasonable belief (read: objective evidence) that the employee is using leave for an invalid reason.
In addition, employers must post this mandatory workplace poster in a conspicuous location in the workplace. (We’d recommend next to your Labor Law poster!) If you have remote workers, you must ensure they also have access to the poster, either by sending it via email or posting it online.
Lastly, employers must also notify employees of their available SPSL balance on itemized wage statements or on a separate writing. They must list the balance separately from the regular paid sick leave balance.
Do employers have to offer SB 95 Supplemental Paid Leave in addition to FFCRA?
Yes, these are completely separate. The FFCRA (now ARPA extension) is 1) a Federal Law and 2) Optional. SB 95 is a CA law and mandatory for eligible employers.
With CA SB 95, can we apply payments already made under EPSL at the beginning of the year to cover our “new” obligations?
No, these are two separate laws: ARCA/FFCRA (Federal) and SB 95 (California). If you already paid out EPSL in 2021 because you opted to continue FFCRA benefits, then you should be okay. The only reason you’d have to go backwards and pay someone is if you didn’t continue FFCRA benefits and an employee was forced to stay home without pay.
We have the FFCRA program in place, but there were a couple of employees who had already used their 80 hours. With the SB 95 mandate, do we have to go back and pay them?
This depends if they used the 80 hours in 2020 or in 2021. If they used up the 80 hours in 2021, you can use this leave to reduce the employee’s SB 95 paid sick leave allotment proportionally.
I wanted to find out if just the retro part of the wages is not eligible for tax credit or if all SB 95 leave is ineligible for tax credit?
As of this writing, there is no mention of any type of tax credit for SB 95. (This is another reason why it would make sense to opt in to the FFCRA/ARPA benefits if you have to pay employees regardless. At least with FFCRA/ARPA, you’d be eligible for the credit.)
Do you recommend we notify employees of these changes in a company-wide email?
Yes! There is also a required notice for SB 95 to post in a common area. If you have employees working for home, you can either mail or email this notice.
For the SB 95 26+ employee count, do temp workers count as employees when arriving at that number? We have 22 EE’s and 10 temps
If the temps are via a temp agency and they are on the temp agency’s payroll, then I’d say that you’re under the 26 employee threshold and you wouldn’t have to implement the additional leave pursuant to SB 95. Keep in mind that the law is not yet in effect and there may be changes in the next few days.
If we required an employee to use their own accrued sick or vacation time, do we have to go back and reinstate those hours and apply those hours to SB 95?
If they used CA Sick, then no. However, if you reduced Vacation/PTO then I’d say yes. Vacation/PTO is a vested benefit so you’d want to restore that and apply the Supplemental Paid Sick Leave (SPSL) pursuant to SB 95.
Can employees use their PTO/vacation benefits for COVID/vaccine related issues?
If you are in CA and need to provide COVID Supplemental Paid Sick Leave (SB 95), you must first apply the SB 95 sick. Employers cannot require that employees use their normal sick leave or other paid time off benefits instead of or before using SB 95 sick leave benefits. It is the employee, not the employer, who decides the amount of SB 95 sick leave benefits the employee will use. (Up to the maximum limits noted above.)
If you are a California business with more than 25 employees, you will need to begin offering SB 95 leave immediately. For SDP clients, you can submit our COVID-19 Supplemental Paid Sick Leave setup form to get started.
After completing your form, email it to our team at [email protected] One of our client advocates will reach out within 1-2 business days with any clarifying questions. We will complete your leave code setup shortly after.
In the meantime, check out the following resources on SB 95 for more information:
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