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 In March 2021, California Governor Gavin Newsom signed into law SB 95 that reinstates and expands the state's COVID-19 supplemental paid sick leave (SPSL) requirements that, under AB 1867, expired on December 31, 2020.

Unlike AB 1867 that supplemented the federal Families First Coronavirus Response Act, and therefore applied only to employers with 500 or more employees, SB 95 covers all employers, both public and private, with 26 or more employees. SB 95 also expands on the qualified reasons for leave and the methods for determining SPSL leave compensation. (See EY Tax Alert 2020-2461 for more information on AB 1867.)

Effective date

The law is effective March 29, 2021 and remains in effect through September 30, 2021. Although employers were not required to provide SPSL until March 29, eligibility is retroactive to January 1, 2021, meaning that covered employees who took qualifying leave between January 1, 2021 and March 28, 2021 can request payment for any unpaid leave during that period. If the law expires while a covered employee is taking this leave, the employee can finish taking the SPSL they are entitled to receive.

Qualifying reasons for SPSL

Covered employees are eligible for SPSL if they are unable to work or telework for any of the following reasons:

• Caring for yourself: The covered employee is subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19 or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• Caring for a family member: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
• Getting the vaccine: The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.

Calculating leave

A covered employee who is considered full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to 80 hours of SPSL; however, if active firefighters are scheduled to work more than 80 hours in the two weeks before the SPSL is taken, they are eligible for as many hours as they were scheduled to work up to a maximum of $511 per day or $5,110 in total.

For each hour of SPSL that a nonexempt covered employee is entitled to receive, the employee must be paid the highest of the following:

• The employee's regular rate of pay for the workweek in which the leave is taken
• A rate 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
• The State minimum wage
• The local minimum wage

SPSL for exempt covered employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for SPSL taken by the covered employee, but the covered employee may utilize other paid leave that may be available in order to receive what they would normally earn if the cap is reached.

Guidance and tools

The California Department of Industrial relations has issued the following guidance and tools to assist employers and employees with the 2021 SPSL law.

• Frequently asked questions
• Workplace poster
• Eligibility navigator

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EY Payroll News Flash