April 2021 Newsletter – School Districts

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On March 19, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 95, which extends and expands employer requirements to provide supplemental paid sick leave to employees impacted by COVID-19. As discussed in greater detail below, the Bill, which goes into effect ten days after enactment, or on March 29, 2021, adds sections 248.2 and 248.3 to the California Labor Code, has critical components that differentiate it from previous COVID-19 supplemental sick leave policies. The following provides a brief overview of the impacts the Bill has on the K-12 and college Districts with 25 or more employees.

As an initial matter, SB 95 is not a continuation of the original California COVID-19 bill (AB 1867), which expired on December 31, 2020. SB 95 has critical components that differentiate it from previous COVID-19 supplemental sick leave policies: First, SB 95 applies to a greater number of California employees than previous legislative efforts, meaning the Bill ultimately expands the coverage of paid sick leave available to eligible employees who are unable to work due COVID-related reasons. The previous law (AB 1867) provided supplemental paid sick leave to only food sector employees for an employer with 500 or more employees and supplemental paid sick leave to non–food sector employees such that covered employers were required to provide sick leave to all employees who left their homes or place of residence to perform work and who worked for employers that had 500 or more employees nationwide. In contrast, SB 95 expands this coverage to include significantly more California employers, including public and private employers with more than 25 employees as defined by Labor Code section 245.5. As a result, many Districts will be subject to the requirements of SB 95 because they have more than 25 employees.

Second, SB 95 allows employees to take COVID-19 supplemental sick leave for new purposes, including for vaccinations, and provides employees with a new bank of supplemental paid sick leave for COVID-related reasons. SB 95 further affords flexibility for the employee to take leave at any given time for various COVID-19 related circumstances and expands this entitlement to employees who are “unable to work or telework” due to additional qualifying reasons, as opposed to the previously more limited language. More specifically, the supplemental paid sick leave will be available to eligible employees who are unable to work or telework because they are: (1) Subject to quarantine or isolation related to COVID-19; (2) advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) attending an appointment to receive a COVID-19 vaccine; (4) experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work; (5) experiencing COVID-19 symptoms and seeking a medical diagnosis; (6) caring for a family member who is subject to quarantine or isolation; or (7) caring for a child whose school or place of care is closed due to COVID-19. Please note, from the following listed above, numbers (3) and (4) above are new qualifying reasons for leave related to COVID-19 vaccines.

Third, SB 95 establishes a new “bank” of supplemental paid sick leave for COVID-19 related reasons. SB 95 is a new law that provides employees with a brand-new bank of supplemental paid sick leave for COVID-related reasons. SB 95 is not a continuation of AB 1867, the original California COVID-19 bill. AB 1867 expired on December 31, 2020. In other words, even though the District previously complied with AB 1867 and provided supplemental paid sick leave in 2020, the District is now required to provide an additional “bank” of supplemental paid sick leave for employees in 2021 under SB 95.

Like AB 1867, SB 95 requires the District to provide up to two weeks, or eighty hours, of COVID-19 supplemental leave to eligible employees. This leave is in addition to any other paid sick leave that may be available under existing law. In addition, the rate of pay for this new supplemental paid sick leave differs from AB 1867. Specifically, for exempt employees, an employer must calculate the rate of pay in the same manner as the employer calculates wages for other forms of paid leave time.

However, non-exempt employees are entitled to the highest of the following:

• The regular rate of pay for the workweek calculated in the same manner as in which the employee uses supplemental paid sick leave, whether or not the employee actually works overtime in that workweek;
• The employee’s total wages, not including overtime premium pay, calculated by dividing by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
• The California minimum wage (which is currently $14.00/hour for employers with 26 employees or more); or
• The local minimum wage to which the employee is entitled.

Please note, the amount of supplemental paid sick leave is capped at $511 per day and $5,110 total per employee unless these amounts are increased by the federal Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (commonly referred to as the FFCRA). An employee may determine how many hours of supplemental paid sick leave to use up to the total number of hours to which the employee is entitled. In addition, each employee’s supplemental paid sick leave balance must be listed on the employee’s wage statement or a separate writing provided with the employee’s pay. The law also provides only a very short grace period on implementing the pay stub requirement: employers have until the next full pay period after March 29, 2021, which is the effective date of the new law.

Fourth, SB 95’s retroactivity requires that the District compensate any employee who took unpaid time off between January 1 and March 29, 2021, prior to the law’s enactment, so long as the employee took this time for one of the specified purposes above. In other words, SB 95 backdates that requirement to leaves taken on or after January 1, 2021 and requires the employer to provide compensation for any leave taken without pay. In addition, for example, an employee who took unpaid time off in February 2021 to attend a vaccination appointment can now receive supplemental paid sick leave benefits retroactively. The law also authorizes the District to count the hours of paid leave provided to employees for COVID-19-related reasons during that time as COVID-19 supplemental paid sick leave.

This has several consequences, first, if the District continued to provide supplemental paid sick leave for leave taken after January 1, 2021, consistent with the new requirements of SB 95, then those hours would count towards the supplemental paid sick leave obligation and no retroactivity applies to that employee.

However, if the District did not provide paid leave to an employee eligible for supplemental paid sick leave or did not compensate the employee in an amount equal to or greater than the amount of compensation for supplemental paid sick leave to which the employee is entitled to under SB 95, then “upon the oral or written request of the employee,” the District is now obligated provide the employee with a retroactive payment that provides for such compensation from January 1, 2021. Further, for any such retroactive payment, the number of hours of leave corresponding to the amount of the retroactive payment shall count towards the total number of hours of supplemental paid sick leave that the employer is required to provide to the employee under SB 95. Finally, this retroactive payment must be paid on or before the payday for the next full pay period after the employee’s oral or written request, and the itemized wage statement must reflect this retroactive payment.

The total number of hours an employee can claim for COVID-19 supplemental paid sick leave benefits will vary based on the employee’s work schedule. If the employee has a regular work schedule, then the employee’s entitlement to COVID-19 supplemental paid sick leave will equal the total number of hours they worked over the past two weeks up to a total of 80 hours. However, if the employee’s schedule varies, the employee’s supplemental paid sick leave will become the average number of hours the employee worked in a two-week period over the past six months. Regardless of how the hours are calculated, SB 95 calculates the amount of pay at the employee’s “regular rate,” but it does not require an employer to pay out more than $511.00 per day or $5,110.00 in the aggregate to an employee in supplemental paid sick leave benefits.

Supplemental paid sick leave must be available for immediate use by the employee, upon oral or written request. Notably, this leave cannot run concurrent with, or in lieu of other leaves. This bill further prohibits the District from requiring an employee to use other paid or unpaid leave, paid time off or vacation time provided by the employer to the employee before that employee uses supplemental paid sick leave or in lieu of supplemental paid sick leave.

On the other hand, the law does allow the District to require an employee to exhaust their COVID-19 supplemental paid sick leave prior to taking COVID-19 Emergency Temporary Standards leave associated with employees excluded from the workplace due to COVID-19 exposure. The District can satisfy Cal/OSHA’s “Exclusion Pay” requirements by requiring an Employee to first exhaust supplemental paid sick leave. In order to satisfy Cal/OSHA’s exclusion pay requirements, i.e., when an employee is excluded from the workplace due to COVID-19 exposure as set forth in Cal/OSHA’s Emergency Temporary Standards effective November 30, 2020, an employer can require an employee to first exhaust the supplemental paid sick leave before the employer is required to pay exclusion pay under Cal/OSHA’s Emergency Temporary Standards.

Again, employees are free to independently determine when and how much supplemental paid sick leave they need to use and the bill does not contain language that would otherwise authorize or permit employers from requiring a covered employee to demonstrate proof or verification of the reasons underlying a request for supplemental paid sick leave.

Lastly, the Bill will remain in effect until September 30, 2021, with certain exceptions. Similar to FFRCA leave, although SB 95 expires September 30, 2021, any employee on a leave at the time SB 95 expires will be entitled to the full amount of COVID-19 paid sick leave available to them. As a result, an employee who is on supplemental paid sick leave at the time of the expiration of this new law must be permitted to take the full amount of supplemental paid sick leave to which the employee would have otherwise been entitled.

The California Labor Commissioner will be issuing a model notice publicly available for the District to display as a poster in the workplace. Once it does, the District will be is required to post this new law as a poster in the workplace so all employees have notice of their supplemental paid sick leave rights. The District can satisfy this posting requirement for workers who do not frequent the workplace by disseminating notice through electronic means, such as email. For your convenience, we will send you a copy of the notice once it is released by the California Labor Commissioner within seven days of the statue’s enactment.

In summary, to further prepare Districts for the enactment of SB 95 we have configured an action plan as follows:

1. The District must display a poster in the workplace providing employees notice of their rights under SB 95. The District must disseminate notice through electronic means, such as e-mail for workers who do not frequent the workplace.
2. The District must list supplemental paid sick leave balance on the employee’s wage statement or a separate writing provided with the employee’s pay. The District has until the next full pay period after March 29, 2021, to comply.
3. If the District previously provided a covered employee with other COVID-19 related paid sick leave between January 1, 2021, and March 28, 2021, the District may receive credit toward the requirements under SB 95 as long as the prior benefits meet the requirements in the law.
4. The District must issue retroactive payment, for leaves taken on or after January 1, 2021, before the payday for the next full pay period after the employee’s oral or written request, and the itemized wage statement must reflect this retroactive payment.

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For more information regarding this article, please contact Chiemela Okwandu at cokwandu@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.