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Last Friday, California Governor Gavin Newsom signed Senate Bill 95 into law, providing California employees with up to two weeks of supplemental paid sick leave (SPSL) for COVID-19 absences, including paid time off for vaccination. The new law reinstates and expands the prior California supplemental paid sick leave law that expired on December 31, 2020, with the key differences outlined below.

Here is what employers need to know about California’s new law:

  • Employers with 26 or more employees are now required to provide SPSL.  The original SPSL law only applied to employers with 500 or more employees.
    • Full time employees are entitled to 80 hours of SPSL, while part time employees receive lesser amounts according to calculations specified in the statute.
    • Unlike the original SPSL, employees must be unable to work or telework to qualify for the new leave benefit.
  • The SPSL obligation takes effect on Monday, March 29, but can apply retroactively to leave taken for covered reasons since January 1, 2021.  Specifically, if employees took unpaid leave for covered reasons earlier this year, employers must pay retroactive SPSL upon oral or written request from such employees.  Employers also must “true up” retroactive paid leaves if the minimum hourly pay specified under the new SPSL exceeds the amount previously paid, again upon oral or written request by employees for the difference.  Such retroactive payments must be made no later than the next payday after receipt of the request for retroactive pay.
  • The new law expands the reasons for which employees may take paid leave to include time off for vaccination and vaccination symptom recovery, as well as to care for family members, neither of which was covered by the original SPSL law.
    • Employees can use SPSL to recover from COVID-19, to schedule a vaccine appointment, to recuperate from vaccine side effects, to seek a medical diagnosis if they suspect they have the virus, to care for a family member in quarantine, or to care for a child whose school or day care has closed because of COVID-19.  Family members include children, grandchildren, grandparents, parents, siblings, or spouses.
  • Employers must begin paying supplemental sick leave by Monday, March 29.  The rates of pay for SPSL differ from the 2020 version of the law, and there are FFCRA-like caps of $511 a day and $5,110 overall.
  • The obligation to provide SPSL runs through September 30, 2021, and like the original SPSL law, employees who start a paid leave by September 30 will be entitled to finish the leave.
  • Employers must list SPSL balances on the paystub, and separately from non-SPSL sick leave balances.  Paystub violations may be enforced starting on the second payday following the law’s March 29 effective date.
  • Employers may require employees to use SPSL before they receive exclusion pay under the Cal/OSHA Emergency Temporary Standard for COVID-19, but employers may not require the use of non-supplemental paid leave (such as regular sick leave or vacation) before taking SPSL.  As before, employees generally are free to decide how much SPSL they wish to use, and employers are limited in how they can verify the need for SPSL.
  • The new SPSL obligation is in addition to whatever local legislation may apply (including city supplemental paid sick leave laws), but employers may be entitled to an “offset” if employees receive other supplemental paid leave benefits.  Several cities, including Los Angeles and San Francisco, have passed their own COVID-19 supplemental sick leave ordinances.
  • Employers must conspicuously display or distribute electronically a poster explaining the new law’s requirements.  The state labor department will issue a model poster any day now.

New York

Effective March 12, 2021, New York has instituted paid leave for employees who receive a COVID-19 vaccination.  The requirements are summarized here.

For help complying with these new laws, please reach out to your Baker McKenzie employment lawyer.