On March 19, 2021, Governor Newsom signed Senate Bill 95 (SB 95), which creates, in part, new Labor Code Section 248.2. As a reminder, Governor Newsom previously signed AB 1867, which added Labor Code sections 248 and 248.1 to provide COVID-19 Supplemental Paid Sick Leave to food sector workers and employees who worked for employers with 500 plus employees nationwide, respectively. Those requirements expired on December 30, 2020.
Section 248.2 provides covered employees with up to 80 new hours of COVID-19 supplemental paid sick leave (SPSL). SPSL is sick leave in addition to paid sick leave employers are already required to provide under the Health Workplaces, Healthy Families Act. This new requirement goes into effect on March 29, 2021 (although, as discussed below, leave provided on or after January 1, 2021 may be applied retroactively) and expires on September 30, 2021, unless otherwise extended. The Labor Commissioner has already published FAQs for Labor Code section 248.2 here.
Covered employers and employees
Section 248.2 defines “employer” as both private and public employers with more than 25 employees. “Covered employee” means an employee who is unable to work or telework for an employer because of a reason listed below as a permissible use.
The permissible uses for SPSL under Section 248.2 are similar to the previous permissible uses under the FFCRA and Labor Code section 248.1. However, Section 248.2 includes two additional permissible uses related to the COVID-19 vaccine.
An employer must provide SPSL if a covered employee is unable to work or telework due to any of the following reasons:
(A) The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
(B) The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
(C) The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
(D) The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
(E) The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(F) The covered employee is caring for a family member who is subject to an order or guidelines described in subparagraph (A) or who has been advised to self-quarantine, as described in subparagraph (B).
(G) The covered employee is caring for a child (biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
Calculating amount of leave entitlement
The process for determining the amount of leave employees receive under section 248.2 law is the same as that for section 248.1.
Full time: A covered worker is entitled to 80 hours of SPSL if the hiring entity considers the worker “full time” or if it scheduled the employee to work, on average, at least 40 hours per week in the preceding two weeks.
Part time: Employees who are not full time are entitled to leave based on the employee’s schedule as follows:
- Set schedule: Employees with a normal weekly schedule are entitled to leave that amounts to the total number of hours they are normally scheduled to work for the employer over two weeks.
- Variable schedule: Employees who work a variable number of hours are entitled to leave that amounts to 14 times the average number of hours they worked each day for the hiring entity in the six months preceding the date they took SPSL.
Rate of SPSL pay
The pay rate of SPSL under Section 248.2 is different from the calculations dictated by Section 248.1. Under Section 248.2, exempt employees must be paid for SPSL at the same rate the employer provides for other types of paid leave.
Non-exempt employees must be paid at the higher of the following rates:
- Their regular rate of pay for the workweek in which the covered employee uses SPSL, whether or not the employee actually works overtime in that workweek.
- Calculated by 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.
- The state minimum wage.
- The local minimum wage to which the covered employee is entitled.
Although the language of Section 248.2 does address employees with applicable collective bargaining agreements, that provision applies only to firefighters and not to other types of employees/professions.
Notwithstanding the above, an employer is not required to pay more than $511 per day, and $5,110 in total, to a covered worker for SPSL “unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (Public Law 116-127), in which case the new federal dollar amounts shall apply to this section as of the date the new amounts are applicable under the federal law.”
Retroactive application to January 1, 2021
SB 95 makes the requirement to provide SPSL under Labor Code section 248.2 retroactive to January 1, 2021. This means that an employee can apply SPSL for any absence since January 1, 2021, that falls within a permissible use, as described above. Similarly, an employer that has provided COVID-19 related leave since January 1, 2021 for any of the permissible uses described above can be credited for such leave.
However, if an employer provided leave for any of the above permissible uses on or after January 1, 2021, the employer must “true-up” the employee’s pay for that leave to make it equivalent to the required rate of pay, as described above, in order to get credit for the previously provided leave. If an employee makes an oral or written request for retroactive payment, such payment must “be paid on or before the payday for the next full pay period after the oral or written request of the covered employee.”
For example, if an employer already provided 8 hours of unpaid leave in February 2021 to a full-time employee who was unable to work due to side effects from a COVID-19 vaccine, then that employee is now entitled to 72 hours of SPSL instead of 80 hours if the employer pays the employee for 8 hours of sick time based on the requirements of section 248.2. Employers may not credit any COVID-19 related leave, either under the FFCRA or California law, from 2020.
Wage statement requirement
As with Section 248.1, the new Section 248.2 requires that employers provide written notice of the amount of SPSL available to a covered employee either on an itemized wage statement or in a separate writing provided on designated pay dates. Any used SPSL must be reflected as a separate line item on employees’ wage statements.
No required exhaustion of other leave permitted
Employers cannot require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses SPSL or in lieu of SPSL.
Interaction with Cal-OSHA’s Emergency Temporary Standards
Notwithstanding the above, employers may require employees who are excluded from the workplace due to COVID-19 exposure under the Cal-OSHA COVID-19 Emergency Temporary Standards (which required employers to maintain an employee’s earnings when an employee is excluded), to first exhaust their SPSL under Section 248.2.
Posting and notice requirements
The Labor Commission has provide a model notice for employers to display in a conspicuous place in the workplace. However, if an employer’s employees do not frequent the workplace, the employer may disseminate the notice through electronic means, such as by electronic mail.
Next steps for employers
Employers with more than 25 employees in California should evaluate their sick leave policies and wage statements to ensure compliance with Labor Code section 248.2. Employers may also want to consult legal counsel to evaluate if providing SPSL under Labor Code section 248.2 will make them eligible to claim tax credits under the recent changes to the federal Families First Coronavirus Relief Act through the American Rescue Plan Act. More information on the payroll tax credits can be found here.
 Although SB 95 also codified new Labor Code section 248.3 (applicable to providers of in-home supportive services) and Labor Code section 248.2 also applies to firefighters, this article will focus only on the provisions of Labor Code section 248.2 applicable to employees generally.