On March 19, 2021, Governor Gavin Newsom signed SB 95 into law, providing extended paid leave (an additional 80 hours) to employees who take a leave of absence from their jobs for COVID-19-related reasons. The bill is an extension on the leave benefits provided last year by the Families First Coronavirus Response Act (FFCRA), which provided employees with up to 80 hours of paid leave for reasons relating to COVID-19 for employers with fewer than 500 employees. After the FFCRA was passed, the California Legislature passed AB 1867, which provided the same benefits to employees working for employers with 500 or more employees.

WHICH EMPLOYERS ARE COVERED?

The new law expands the prior relief provided and now applies to all California employers who employ 25 or more employees. Additionally, the new law now applies to employees who are unable to work or telework because of COVID-19-related reasons. In other words, employees who are already working remotely, who cannot “telework” because of COVID-19-related reasons are now eligible for the extended paid leave law.

WHEN IS AN EMPLOYEE ELIGIBLE TO TAKE LEAVE?

The new law contains seven separate “qualifying reasons” for requesting the paid leave. An employee who meets one of the following scenarios can qualify for the paid leave:

1. The employee is subject to a quarantine or isolation “period” related to COVID-19;
2. The employee is attending an appointment to receive a COVID-19 vaccine;
3. The employee is advised by a health care provider to self-quarantine or isolate due to COVID-19;
4. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis from a healthcare provider;
5. The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from engaging in work;
6. The employee is caring for a family member (minor or adult child, parent, spouse, domestic partner, grandparent, grandchild, or sibling) who is subject to a quarantine or isolation period, or who has been advised to self-quarantine; or
7. The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Full and part-time employees are eligible for the new paid leave. Employers should also remember this – if an employee is kept from the workplace and is told to work remotely for any reason related to COVID-19 (such as for quarantining), the employee may be eligible to take paid leave under SB 95.

IS THE NEW LAW RETROACTIVE?

The new law also has a retroactivity clause. According to the new law, if an employee took a leave of absence on or after January 1, 2021, that would have qualified for paid leave under the new law, and the employer did not provide paid leave, upon request from the employee, the employer is required to provide the employee with retroactive payment to cover the period of the leave. This law provides paid leave in addition to other paid leaves which may be provided under state law. Employers should review the circumstances provided for paid leaves from January 1 to March 29 to determine whether the paid leave under SB-95 can be offset by a paid leave of absence already provided to an employee.

Furthermore, the payment must be made before the payday for the next full period after the request is made by the employee and must be memorialized in the employee’s regular wage statement.

WHEN DOES THE LAW GO INTO EFFECT?

The new paid leave law goes into effect on March 29, 2021, and employees are eligible to take the supplemental paid leave through September 30, 2021.

ARE THERE ANY POSTING REQUIREMENTS?

Yes. California employers are required to post notice of this new law, which can be found here.

Employers should be prepared for such requests from employees who not only seek to take paid leave for COVID-19-related reasons, but who also seek reimbursement for unpaid leaves taken since January 1, 2021, for those same COVID-19-related reasons. Employers should also remember that they may not request medical certification for the reason(s) taken for the leave.

The California Department of Industrial Relations has provided an updated FAQ page for employers, which provides additional information.

Employers should consult with Human Resources and their employment counsel to determine how to address inquiries and requests from employees.