Governor Newsom Signs Two Retroactive COVID Paid Sick Leave Bills Against Opposition of California Employer Groups

by | Mar 22, 2021 | Politics and Industry News

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Governor Newsom Signs Two Retroactive COVID Paid Sick Leave Bills Against Opposition of California Employer Groups

What the Passage of SB 95 (Skinner, D, Oakland) and AB 84 (Ting, D, San Francisco): Paid Supplemental COVID-19 Sick Leave Means for Employers

SACRAMENTO — Against the broad opposition of employers and businesses in California, Governor Newsom signed two bills this past Friday obligating California businesses to pay COVID-19 retroactive sick leave to employees back to January 1, 2021.

CAL SMACNA is alerting its members about the passage of two bills: AB 84 (Ting) and SB 95 (Skinner).

These bills create a paid sick leave mandate that would impose a significant cost onto all employers. SB 95 and AB 84 do not exempt collective bargaining agreements.

These bills provide a new sick leave program by amending Sections 248 and 248.1 of the California Labor Code. As budget trailer bills, SB 95 and AB 84 would take effect immediately.

The bills would:

  1. Require employers with more than twenty-five (25) employees to provide up to 80 hours of paid sick leave per calendar year to all employees for COVID-19 related reasons between January 1, 2021 and September 30, 2021. 
  2. Provide no state tax credit or funding to businesses to offset the cost of the leave — instead these bills rely upon employers themselves to seek financial relief from the federal government. 
  3. Drastically expands the reasons for which an employee can take leave. 

SB 95 and AB 84 mandates that all public and private California employers provide COVID-19 supplemental paid sick leave (retroactively from January 1, 2021 and going forward through September 30, 2021) for workers who are unable to work or telework because of the following reasons:

  1. The worker is subject to a federal, state, or local isolation order. 
  2. Advised by a healthcare provider to self-isolate due to concerns related to COVID-19.
  3. Prohibited from working by the hiring entity due to concerns related to potential transmission of COVID-19. 
  4. Attending an appointment to receive a COVID-19 vaccination. 
  5. Experiencing symptoms related to a COVID-19 vaccine. 
  6. Experiencing symptoms of COVID-19 and seeking medical diagnosis. 
  7. Caring for an individual who must self-quarantine or is experiencing symptoms of COVID-19 and is seeking medical diagnosis. 
  8. Caring for an individual whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19. 

A covered employee is entitled to 80 hours of COVID-19 supplemental paid sick leave if they satisfy the following criteria:

  1. The employer considers the employee to work full time. 
  2. The employee worked or was scheduled to work at least 40 hours per week in the two weeks preceding the date the employee took the sick leave. 

If an employee does not satisfy the above criteria they will be entitled to an amount of COVID-19 supplement paid sick leave as follows:

  1. If the employee has a normal weekly schedule, the total number of hours the employee is normally scheduled to work over two weeks. 
  2. If the employee works a variable number of hours, 14 times the average number of hours the employee worked each day for the employer in the 6 months preceding the date the employee took the leave. 
  3. If the employee has worked for the employer less than 6 months but more than 14 days, the calculation must be made over the entire period the employee has worked for the employer. 
  4. If the employee works a variable number of hours and has worked for the employer less than 14 days it will be the total number of hours the employee has worked for that employer. 

An employer must make COVID-19 supplemental paid sick leave available for the immediate use by the employee upon oral or written request. 

Each hour of COVID-19 supplemental paid sick leave must be compensated at the rate equal to the following:

  1. For nonexempt employees, by the highest of the following:
    1. Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses the leave, whether or not the employee actually works overtime that week. 
    2. Calculated by dividing the 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. 
    3. The state minimum wage. 
    4. The local minimum wage to which the covered employee is entitled. 
  2. COVID-19 supplemental paid sick leave for exempt employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave time. 

A covered employee who is entitled to an amount of COVID-19 supplemental paid sick leave must be compensated for each hour of leave at the regular rate of pay to which the employee would be entitled as if the covered employee had been scheduled to work those hours, pursuant to existing law or an applicable collective bargaining agreement. 

An employer is prohibited from requiring an employee from using any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the employee before the employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.

Retroactivity:

  1. If an employee took leave on or after January 1, 2021 that otherwise would have qualified under COVID-19 supplemental paid sick leave and the employer did not provide paid leave (or has not compensated the employee at the required level) then upon oral or written request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation. 
  2. For retroactive payments, the number of hours of leave corresponding to the amount of the retroactive payment shall count towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide to the employee under the new mandate. 
  3. This retroactive payment shall be paid on or before the payday for the next full pay period after the oral or written request of the employee and must be reflected on the corresponding wage statement. 

The requirement to provide COVID-19 supplemental paid sick leave would remain in effect through September 30, 2021.