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SB-95 Employment: COVID-19: supplemental paid sick leave. (2021-2022)

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Date Published: 02/22/2021 12:41 PM
SB95:v98#DOCUMENT

Amended  IN  Assembly  February 22, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 95


Introduced by Senator Skinner

December 16, 2020


An act relating to the Budget Act of 2021. An act to amend Sections 248 and 248.1 of the Labor Code, relating to employment, and making an appropriation therefor, to take effect immediately, bill related to the budget.


LEGISLATIVE COUNSEL'S DIGEST


SB 95, as amended, Skinner. Budget Act of 2021. Employment: COVID-19: supplemental paid sick leave.
Existing law, until December 31, 2020, provided for COVID-19 food sector supplemental paid sick leave for food sector workers, and required a hiring entity to provide COVID-19 food sector supplemental paid sick leave, as described, to each food sector worker unable to work due to specified reasons relating to COVID-19. Existing law also established, until December 31, 2020, COVID-19 supplemental paid sick leave for covered workers, including certain persons employed by private businesses of 500 or more employees or persons employed as certain types of health care providers or emergency responders by public or private entities. Existing law authorized a food sector worker or a covered worker to take up to 80 hours of COVID-19 supplemental paid sick leave if that worker either works full time or was scheduled to work, on average, at least 40 hours per week for the employer in the 2 weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave, and provided a different calculation for supplemental paid sick leave for a covered employee who is a firefighter subject to certain work schedule requirements and for a covered employee working fewer or variable hours.
This bill, beginning January 1, 2021, would extend the COVID-19 food sector supplemental paid sick leave for food sector workers, and the COVID-19 supplemental paid sick leave for covered workers, if those workers are unable to work or telework due to certain reasons related to COVID-19 and meet specified conditions. The bill would expand the definition of a covered worker for COVID-19 supplemental paid sick leave to any employees at any public or private entity and to transportation network company drivers, as defined. The bill would additionally entitle a food sector worker or a covered worker to leave if, among other reasons, the worker is experiencing symptoms related to a COVID-19 vaccine that prevents the worker from being able to work, or is caring for an individual whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19. The bill would specify that a food sector worker or a covered worker is entitled to 80 hours of leave per calendar year, unless otherwise specified. The bill would provide that these provisions expire on September 30, 2021, or upon the expiration of any federal extension of the federal Emergency Paid Sick Leave Act, as specified.
This bill would appropriate $100,000 from the Labor and Workforce Development Fund to the Labor Commissioner for staffing resources to implement and enforce these provisions.
This bill would declare that it is to take effect immediately as a bill providing for appropriations related to the Budget Bill.

This bill would express the intent of the Legislature to enact statutory changes relating to the Budget Act of 2021.

Vote: MAJORITY   Appropriation: NOYES   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 248 of the Labor Code is amended to read:

248.
 (a) As used in this section:
(1) “COVID-19 food sector supplemental paid sick leave” means supplemental paid sick leave provided pursuant to this section.
(2) “Food sector worker” means any person who satisfies all of the following criteria:
(A) The person satisfies one or more of the following criteria:
(i) The person works in an industry or occupation defined in paragraph (B) of Section 2 of IWC Wage Order 3-2001, paragraph (H) of Section 2 of IWC Wage Order 8-2001, paragraph (H) of Section 2 of IWC Wage Order 13-2001, or paragraph (D) of Section 2 of IWC Wage Order 14-2001.
(ii) The person works for a hiring entity that operates a food facility, as defined in Section 113789 of the Health and Safety Code.
(iii) The person delivers food from a food facility, as defined in Section 113789 of the Health and Safety Code, for or through a hiring entity.
(B) The person leaves the person’s home is unable to work or other place telework because of residence to perform work for or through the person’s hiring entity. a reason listed under paragraph (1) of subdivision (b).
(3) “Hiring entity” means a private sole proprietorship or any kind of private entity whatsoever, including, but not limited to, any kind of corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise, and specifically including, but not limited to, any delivery network company, as defined in subdivision (b) of Section 6041.5 of the Revenue and Taxation Code, and any transportation network company, as defined in subdivision (c) of Section 5431 of the Public Utilities Code, that has 500 or more employees in the United States. Code. For purposes of this paragraph, Section 826.40(a)(1) and (2) of Title 29 of the Code of Federal Regulations shall be used to determine the number of employees that the hiring entity employs.
(4) “IWC Wage Order” means a wage order of the Industrial Welfare Commission.
(b) A food sector worker shall be entitled to COVID-19 food sector supplemental paid sick leave as follows:
(1) A hiring entity shall provide COVID-19 food sector supplemental paid sick leave to each food sector worker who performs work for or through the hiring entity if that food sector worker is unable to work due to any of the following reasons:
(A) The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
(B) The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
(C) The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
(D) The food sector worker is attending an appointment to receive a vaccine for protection against contracting COVID-19.
(E) The food sector worker is experiencing symptoms related to a COVID-19 vaccine that prevents the worker from being able to work.
(F) The food sector worker is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(G) The food sector worker is caring for an individual who is subject to an order described in subparagraph (A), has been advised to self-quarantine or self-isolate as described in subparagraph (B), or is experiencing symptoms of COVID-19 and seeking a medical diagnosis as described in subparagraph (E).
(H) The food sector worker is caring for an individual whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
(2) A food sector worker shall be entitled to the following number of hours of COVID-19 food sector supplemental paid sick leave: leave per calendar year:
(A) A food sector worker is entitled to 80 hours of COVID-19 food sector supplemental paid sick leave, if the food sector worker satisfies either of the following criteria:
(i) The hiring entity considers the food sector worker to work “full time.”
(ii) The food sector worker worked or was scheduled to work, on average, at least 40 hours per week for the hiring entity in the two weeks preceding the date the food sector worker took COVID-19 food sector supplemental paid sick leave.
(B) A food sector worker who does not satisfy either of the criteria in subparagraph (A) is entitled to an amount of COVID-19 food sector supplemental paid sick leave as follows:
(i) If the food sector worker has a normal weekly schedule, the total number of hours the food sector worker is normally scheduled to work for or through a hiring entity over two weeks.
(ii) If the food sector worker works a variable number of hours, 14 times the average number of hours the food sector worker worked each day for or through the hiring entity in the six months preceding the date the food sector worker took COVID-19 food sector supplemental paid sick leave. If the food sector worker has worked for the hiring entity fewer than six months, this calculation shall instead be made over the entire period the food sector worker has worked for the hiring entity.
(C) The total number of hours of COVID-19 food sector supplemental paid sick leave to which a food sector worker is entitled pursuant to subparagraph (A) or (B) shall be in addition to any paid sick leave that may be available to the food sector worker under Section 246, but shall not be in addition to the total number of hours of supplemental paid sick leave available to the worker under Executive Order N-51-20.
(D) A food sector worker may determine how many hours of COVID-19 food sector supplemental paid sick leave to use, up to the total number of hours to which the food sector worker is entitled pursuant to subparagraph (A) or (B). The hiring entity shall make COVID-19 food sector supplemental paid sick leave available for immediate use by the food sector worker, upon the oral or written request of the worker to the hiring entity.
(E) A hiring entity is not required to provide a food sector worker more than the total number of hours of COVID-19 food sector supplemental paid sick leave to which the food sector worker is entitled pursuant to subparagraph (A) or (B) above.
(3) (A) Each hour of COVID-19 food sector supplemental paid sick leave shall be compensated at a rate equal to the highest of the following:
(i) The food sector worker’s regular rate of pay for the food sector worker’s last pay period.
(ii) The state minimum wage.
(iii) The local minimum wage to which the food sector worker is entitled.
(B) Notwithstanding subparagraph (A), a hiring entity shall not be required to pay more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate to a food sector worker for COVID-19 food sector supplemental paid sick leave taken by the worker.
(4) A hiring entity shall not require a food sector worker to use any other paid or unpaid leave, paid time off, or vacation time provided by the hiring entity to the food sector worker before the food sector worker uses COVID-19 food sector supplemental paid sick leave or in lieu of COVID-19 food sector supplemental paid sick leave.
(c) Notwithstanding subdivision (b), if a hiring entity already provides the relevant food sector worker with a supplemental benefit, such as supplemental paid leave, that is payable for the reasons listed in paragraph (1) of subdivision (b) and that would compensate the food sector worker in an amount equal to or greater than the amount of compensation for taking COVID-19 food sector supplemental paid sick leave to which the food sector worker would otherwise be entitled as set forth under paragraph (3) of subdivision (b), then the hiring entity may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 food sector supplemental paid sick leave that the hiring entity is required to provide to the food sector worker under paragraph (2) of subdivision (b). For purposes of the foregoing, the other supplemental paid benefit or leave that may be counted does not include paid sick leave to which the food sector worker is entitled under Section 246, but may include paid leave already provided on or after January 1, 2021, by the hiring entity pursuant to Executive Order N-51-20 or supplemental paid leave provided pursuant to federal or local law for the same reasons set forth in paragraph (1) of subdivision (b).
(d) (1) In addition to other remedies as may be provided by the laws of this state or its subdivisions, including, but not limited to, the remedies available to redress any unlawful business practice under Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code, the Labor Commissioner shall enforce this section. For purposes of such enforcement and to implement COVID-19 food sector supplemental paid sick leave, this section shall apply as follows:
(A) The Labor Commissioner shall enforce this section as if COVID-19 food sector supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave” under subdivision (n) of Section 246, subdivisions (b) and (c) of Section 246.5, Section 247, Section 247.5, and Section 248.5. Any claim by a covered worker that is enforceable by the Labor Commissioner for supplemental paid sick leave pursuant to Executive Order N-51-20 shall also be enforceable through this section.
(B) Section 249 applies to COVID-19 food sector supplemental paid sick leave.
(2) For purposes of sections of this code cited in subparagraphs (A) to (C), inclusive, of paragraph (1), in construing this section all food sector workers shall be considered employees and any hiring entity shall be considered an employer.
(e) The requirement to provide COVID-19 food sector supplemental paid sick leave as set forth in this section applies retroactively to April 16, 2020, January 1, 2021, and shall expire on December 31, 2020 September 30, 2021, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (Public Law 116-127), whichever is later, except that a food sector worker taking COVID-19 food sector supplemental paid sick leave at the time of the expiration of this section shall be permitted to take the full amount of COVID-19 food sector supplemental paid sick leave to which that food sector worker otherwise would have been entitled under this section.

SEC. 2.

 Section 248.1 of the Labor Code is amended to read:

248.1.
 (a) As used in this section:
(1) “COVID-19 supplemental paid sick leave” means supplemental paid sick leave provided pursuant to this section.
(2) “Covered worker” means any person who satisfies the following criteria:
(A) The person satisfies one or more of the following criteria:
(i) The person is employed by a hiring entity, as defined in subparagraph (A) of paragraph (3).
(ii) The person is employed as a health care provider or emergency responder, a transportation network company driver, as defined under in subdivision (a) of Section 826.30(c) 5431 of Title 29 of the Code of Federal Regulations, by Public Utilities Code, and provides services for or through a hiring entity transportation network company, as defined in subparagraph (B) subdivision (c) of paragraph (3) that has elected to exclude such employees from emergency paid sick leave under Section 5431 of the federal Families First Coronavirus Response Act (Public Law 116-127). Public Utilities Code.
(B) The person satisfying one or more of the criteria in subparagraph (A) leaves the person’s home is unable to work or other place telework because of residence to perform work for the person’s hiring entity. a reason listed under paragraph (1) of subdivision (b).
(C) Notwithstanding subparagraph (A), a “covered worker” shall not include any of the following: a food sector worker as described in Section 248.

(i)A person who works in an industry or occupation defined in paragraph (B) of Section 2 of IWC Wage Order 3-2001, paragraph (H) of Section 2 of IWC Wage Order 8-2001, paragraph (H) of Section 2 of IWC Wage Order 13-2001, or paragraph (D) of Section 2 of IWC Wage Order 14-2001.

(ii)A person who works for a hiring entity that operates a food facility, as defined in Section 113789 of the Health and Safety Code.

(iii)A person who delivers food from a food facility, as defined in Section 113789 of the Health and Safety Code, for or through a hiring entity.

(3)“Hiring entity” means either of the following:

(A)

(3) A “Hiring entity” means a private sole proprietorship or any kind of public or private entity whatsoever, including, but not limited to, any kind of corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise that has 500 or more employees in the United States. For purposes of this paragraph, Section 826.40(a)(1) and (2) of Title 29 of the Code of Federal Regulations shall be used to determine the number of employees that the hiring entity employs. enterprise.

(B)An entity, including a public entity, that employs health care providers or emergency responders as defined under Section 826.30(c) of Title 29 of the Code of Federal Regulations, and that has elected to exclude such employees from emergency paid sick leave under the federal Families First Coronavirus Response Act (Public Law 116-127).

(4)“IWC Wage Order” means a wage order of the Industrial Welfare Commission.

(b) A covered worker shall be entitled to COVID-19 supplemental paid sick leave as follows:
(1) A hiring entity shall provide COVID-19 supplemental paid sick leave to each covered worker who performs work for or through the hiring entity if that covered worker is unable to work due to any of the following reasons:
(A) The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
(B) The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
(C) The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
(D) The covered worker is attending an appointment to receive a vaccine for protection against contracting COVID-19.
(E) The covered worker is experiencing symptoms related to a COVID-19 vaccine that prevents the worker from being able to work.
(F) The covered worker is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(G) The covered worker is caring for an individual who is subject to an order described in subparagraph (A), has been advised to self-quarantine or self-isolate as described in subparagraph (B), or is experiencing symptoms of COVID-19 and seeking a medical diagnosis as described in subparagraph (E).
(H) The covered worker is caring for an individual whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
(2) A covered worker shall be entitled to the following number of hours of COVID-19 supplemental paid sick leave: leave per calendar year:
(A) A covered worker is entitled to 80 hours of COVID-19 supplemental paid sick leave, if the covered worker satisfies either of the following criteria:
(i) The hiring entity considers the covered worker to work “full time.”
(ii) The covered worker worked or was scheduled to work, on average, at least 40 hours per week for the hiring entity in the two weeks preceding the date the covered worker took COVID-19 supplemental paid sick leave.
(B) Notwithstanding subparagraph (A), a covered worker who is an active firefighter who was scheduled to work more than 80 hours for the hiring entity in the two weeks preceding the date the covered worker took COVID-19 supplemental paid sick leave is entitled to an amount of COVID-19 supplemental paid sick leave equal to the total number of hours that the covered worker was scheduled to work for the hiring entity in those two preceding weeks. This subparagraph applies to an active firefighting member of any of the following:
(i) A fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision.
(ii) A fire department of the University of California and the California State University.
(iii) The Department of Forestry and Fire Protection.
(iv) A county forestry or firefighting department or unit.
(v) A fire department that serves a United States Department of Defense installation and whose firefighters are certified by the United States Department of Defense as meeting its standards for firefighters.
(vi) A fire department that serves a National Aeronautics and Space Administration installation and that adheres to training standards established in accordance with Article 4 (commencing with Section 13155) of Chapter 1 of Part 2 of Division 12 of the Health and Safety Code.
(vii) A fire department that provides fire protection to a commercial airport regulated by the Federal Aviation Administration (FAA) under Part 139 (commencing with Section 139.1) of Subchapter G of Chapter 1 of Title 14 of the Federal Code of Regulations whose firefighters are trained and certified by the State Fire Marshal as meeting the standards of Fire Control 5 and Section 139.319 of Title 14 of the Federal Code of Regulations.
(viii) Fire and rescue services coordinators who work for the Office of Emergency Services. For purposes of this clause, “fire and rescue services coordinators” means coordinators with any of the following job classifications: coordinator, senior coordinator, or chief coordinator.
(C) A covered worker who does not satisfy either of the criteria in subparagraph (A) or (B) is entitled to an amount of COVID-19 supplemental paid sick leave as follows:
(i) If the covered worker has a normal weekly schedule, the total number of hours the covered worker is normally scheduled to work for the hiring entity over two weeks.
(ii) If the covered worker works a variable number of hours, 14 times the average number of hours the covered worker worked each day for the hiring entity in the six months preceding the date the covered worker took COVID-19 supplemental paid sick leave. If the covered worker has worked for the hiring entity over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the covered worker has worked for the hiring entity.
(iii) If the covered worker works a variable number of hours and has worked for the hiring entity over a period of 14 days or fewer, the total number of hours the covered worker has worked for that hiring entity.
(D) The total number of hours of COVID-19 supplemental paid sick leave to which a covered worker is entitled pursuant to subparagraph (A), (B), or (C) shall be in addition to any paid sick leave that may be available to the covered worker under Section 246.
(E) A covered worker may determine how many hours of COVID-19 supplemental paid sick leave to use, up to the total number of hours to which the covered worker is entitled pursuant to subparagraph (A), (B), or (C). The hiring entity shall make COVID-19 supplemental paid sick leave available for immediate use by the covered worker, upon the oral or written request of the worker to the hiring entity.
(F) A hiring entity is not required to provide a covered worker more than the total number of hours of COVID-19 supplemental paid sick leave to which the covered worker is entitled pursuant to subparagraph (A), (B), or (C).
(3) (A) Each hour of COVID-19 supplemental paid sick leave shall be compensated at a rate equal to the highest of the following:
(i) The covered worker’s regular rate of pay for the covered worker’s last pay period, including pursuant to any collective bargaining agreement that applies.
(ii) The state minimum wage.
(iii) The local minimum wage to which the covered worker is entitled.
(B) Notwithstanding subparagraph (A), a covered worker who is entitled to an amount of COVID-19 supplemental paid sick leave under subparagraph (B) of paragraph (2), shall be compensated for each hour of COVID-19 supplemental paid sick leave at the regular rate of pay to which the worker would be entitled as if the worker had been scheduled to work those hours, pursuant to existing law or an applicable collective bargaining agreement.
(C) Notwithstanding subparagraph (A) or (B), a hiring entity shall not be required to pay more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate to a covered worker for COVID-19 supplemental paid sick leave taken by the worker.
(4) A hiring entity shall not require a covered worker to use any other paid or unpaid leave, paid time off, or vacation time provided by the hiring entity to the covered worker before the covered worker uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.
(c) Notwithstanding subdivision (b), if a hiring entity already provides a covered worker with a supplemental benefit, such as supplemental paid leave, that is payable for the reasons listed in paragraph (1) of subdivision (b) and that would compensate the covered worker in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered worker is entitled as set forth under paragraph (3) of subdivision (b), then the hiring entity may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 supplemental paid sick leave that the hiring entity is required to provide to the covered worker under paragraph (2) of subdivision (b). For purposes of the foregoing, the other supplemental paid benefit or leave that may be counted does not include paid sick leave to which the covered worker is entitled under Section 246, but may include paid leave already provided by the hiring entity pursuant to Executive Order N-51-20 or Section 248, or supplemental paid leave provided pursuant to federal or local law for the same reasons set forth in paragraph (1) of subdivision (b). Additionally, if a hiring entity already provided supplemental paid leave between March 4, 2020, and the effective date of this section for the reasons listed in paragraph (1) of subdivision (b) but did not compensate the covered worker in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered worker is entitled as set forth under paragraph (3) of subdivision (b), the employer may retroactively provide supplemental pay to the covered worker to satisfy the compensation requirements under paragraph (3) of subdivision (b), in which case those hours may count towards the total number of hours of COVID-19 supplemental paid sick leave required under paragraph (2) of subdivision (b).
(d) (1) In addition to other remedies as may be provided by the laws of this state or its subdivisions, including, but not limited to, the remedies available to redress any unlawful business practice under Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code, the Labor Commissioner shall enforce this section. For purposes of such enforcement and to implement COVID-19 supplemental paid sick leave, this section shall apply as follows:
(A) The Labor Commissioner shall enforce this section as if COVID-19 supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave” under subdivisions (i) and (n) of Section 246, subdivisions (b) and (c) of Section 246.5, Section 247, Section 247.5, and Section 248.5. However, the requirement in subdivision (i) of Section 246 is not enforceable until the next full pay period following the date of enactment of this section.
(B) Section 249 applies to COVID-19 supplemental paid sick leave.
(C) By seven days after the effective date of this section, the Labor Commissioner shall make publicly available a model notice for purposes of Section 247. Only for purposes of COVID-19 supplemental paid sick leave, if a hiring entity’s covered workers do not frequent a workplace, the hiring entity may satisfy the notice requirement of subdivision (a) of Section 247 by disseminating notice through electronic means, such as by electronic mail.
(2) For purposes of sections of this code cited in subparagraphs (A) to (C), inclusive, of paragraph (1), in construing this section all covered workers shall be considered employees and any hiring entity shall be considered an employer.
(e) The requirement to provide COVID-19 supplemental paid sick leave as set forth in this section shall take effect not later than 10 days after the date of enactment of this section. on January 1, 2021.
(f) The requirement to provide COVID-19 supplemental paid sick leave as set forth in this section shall expire on December 31, 2020, September 30, 2021, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (Public Law 116-127), whichever is later, except that a covered worker taking COVID-19 supplemental paid sick leave at the time of the expiration of this section shall be permitted to take the full amount of COVID-19 supplemental paid sick leave to which that covered worker otherwise would have been entitled under this section.

SEC. 3.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 4.

 The sum of $100,000 is hereby appropriated from the Labor and Workforce Development Fund to the Labor Commissioner for staffing resources to implement and enforce the provisions related to the COVID-19 supplemental paid sick leave and the COVID-19 food sector supplemental paid sick leave, pursuant to Section 248 and 248.1 of the Labor Code, as amended by this act.

SEC. 5.

 The amendments made by this act to Sections 248 and 248.1 of the Labor Code shall be deemed to have become operative on January 1, 2021, and the amendments shall be given retroactive effect to that date.

SEC. 6.

 This act is a bill providing for appropriations related to the Budget Bill within the meaning of subdivision (e) of Section 12 of Article IV of the California Constitution, has been identified as related to the budget in the Budget Bill, and shall take effect immediately.
SECTION 1.

It is the intent of the Legislature to enact statutory changes relating to the Budget Act of 2021.