[Editor’s Note: From time to time, we include guest authors that we think can help to inform readers on timely and relevant issues related to local educational agency (LEA) operations, and most recently, how operations are impacted by Senate Bill (SB) 95, which expands COVID-19 supplemental sick leave. Elizabeth B. (Lisa) Mori (Partner, F3 Law) has partnered with us in writing this article.]
On Friday, March 19, 2021, Governor Gavin Newsom signed SB 95, which creates uniform, statewide policy to ensure employees have access to COVID-19 supplemental paid sick leave through September 30, 2021, (see “Legislation Expands COVID-19 Supplemental Paid Sick Leave” in the March 2021 Fiscal Report). SB 95 reinstates COVID-19 leave as a provision of state law and expands it to all public and private entities, including LEAs. Since the time that SB 95 was signed into law, many questions have arisen regarding the implementation of COVID-19 Supplemental Paid Sick Leave, and operational considerations to maintain legal compliance. Below are some of the most frequently asked questions (FAQs) in the management of this new leave entitlement for LEA employees.
Q: Is the 80 hours of COVID-19 supplemental paid sick leave in addition to the original 80 hours of Emergency Paid Sick Leave (EPSL) through the Families First Coronavirus Response Act (FFCRA), or is it just extending the usage dates?
A: SB 95 provides a new leave entitlement that is in addition to FFCRA leave. The distinction is that the FFCRA was federal leave which expired December 31, 2020. The recently enacted COVID-19 supplemental paid sick leave is a state provision, which is similar to the FFCRA, but there are important differences in the details.
Q: Our LEA opted to grant an extension of FFCRA leave through March 31, 2021. How do we implement the new expanded COVID-19 leave provided in SB 95?
A: Implementation of SB 95 is complicated due to the retroactive application to leave taken for COVID-related reasons between January 1, 2021, and March 29, 2021. LEAs who granted extensions of FFCRA leave are authorized to retroactively score qualifying absences taken as FFCRA leave since January 1, 2021 against this new leave entitlement. For example, if a full-time employee took 40 hours of COVID-related leave in February 2021 due to symptoms related to COVID-19 and sought medical advice, then the reason for the leave aligns with SB 95, reason (E)—the provider is experiencing symptoms of COVID-19 and seeking a medical diagnosis. After deducting the 40 hours of leave, the employee would then have a balance of 40 hours of COVID-19 supplemental paid sick leave available for use through September 30, 2021.
Q: With the new law, is the 2/3 pay rule now gone if a teacher has to stay home to care for their quarantined child?
A: Yes. The calculation of payment for COVID-19 supplemental paid sick leave is one area that is not as complicated as the FFCRA. Authorized leave provided by SB 95 is provided at full pay. However, employers cannot be required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave.
Additional information related to the calculation of pay for this leave entitlement:
- Exempt employee rate of pay is calculated in the same manner as wages and other forms of paid leave time.
- Non-exempt employee rate of pay is 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.
- In no event shall pay be below 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.
If your organization agreed to extend FFCRA leave or to provide additional leave for qualifying purposes under SB 95, you should carefully review those agreements to the extent that greater benefits may have been authorized (i.e. full pay).
Q: Do all employees get 80 hours of leave, regardless of their full-time equivalent (FTE) status?
A: No, the amount of leave entitlement is based on the number of hours the employee works, or their FTE status; however, it is important to note that all full-time employees, regardless of the number of hours designated as qualifying for full-time status, are entitled to 80 hours of supplemental paid sick leave. Part-time employees working a normal weekly schedule are entitled to supplemental paid sick leave in an amount equal to the number of hours scheduled to be worked over two weeks.
Q: Is supplemental paid sick leave available for an employee to care for a child home and engaged in their school’s distance learning or hybrid instructional model?
A: Supplemental paid sick leave under SB 95 differs significantly from the leave available under the FFCRA with regard to leaves taken to care for children due to school closures. Under the FFCRA, paid leave was available if the child’s school or place of care was closed, including intermittent leave for those days of distance learning under a hybrid instructional model. Under SB 95, qualifying leave is limited to those situations where the “school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.” (Emphasis added.) As such, supplemental paid sick leave would only appear available if the place of care or school had to close or temporarily revert to distance learning based on a positive COVID-19 case or outbreak at the school site.
Q: If an employee begins a qualifying period of leave under SB 95 on September 30, 2021, and still has a balance of supplemental paid sick leave hours available, are they entitled to remain off work through the duration of the covered event until their leave is exhausted?
A: Yes. Similar to leave under the FFCRA, as long as the qualifying leave begins on or before the expiration date of the legislation (September 30, 2021), the employee would still be entitled to access and apply their full leave entitlement until exhausted (assuming the leave is continuous). At that point, any remaining leave balance will expire and no longer be available.
Q: The statute provides no guidance on whether the employer may ask for supporting documentation. LEAs, at times, experience employees who misuse benefitted time and would like to be able to counter any anticipated abuse by requiring some form of documentation confirming the need for supplemental paid sick leave time.
A: Nothing in the legislation prohibits an employer from requiring verification of the qualifying purpose of the leave.
Q: How does supplemental paid sick leave apply when an employee is required to quarantine due to a confirmed COVID-19 workplace exposure?
A: Under the California Department of Occupational Safety and Health (Cal/OSHA) Emergency Temporary Standards, employers are required to maintain an employee’s earnings when excluded from the workplace due to a confirmed workplace exposure to COVID-19. SB 95 authorizes, but does not require, employers to mandate that employees first exhaust all available supplemental paid leave sick in such circumstances prior to providing required exclusion pay. Employers should carefully review their internal policies and practices as well as all applicable labor agreements to ensure consistency in leave application policies.