California COVID-19 Supplemental Paid Sick Leave Update (SB 95)

On March 19, 2021, Governor Newsom signed into law the extension and expansion of the CA COVID-19 Supplemental Paid Sick Leave (CA COVID-19 SPSL) that had previously expired on December 31, 2020. Below we’ve created a helpful guide to some of the questions productions and their crew may have.

When, and for how long, is this new CA COVID-19 Supplemental Paid Sick Leave in effect?

The requirement for production company employers to provide paid sick leave begins 10 days after the law is enacted, making the requirement to provide leave effective March 29, 2021, and it applies retroactively to January 1, 2021. The new law expires on September 30, 2021.

Is my production company impacted by CA COVID-19 SPSL?

If you have more than 25 employees, yes. While employer applicability previously extended only to those companies with more than 500 employees, this new bill is applicable to public and private employers with more than 25 employees, considerably expanding the production companies impacted.

What is the hourly rate of CA COVID Paid Sick Leave for my affected production crew members and staff?

The rate for exempt employees is calculated in the same manner as the production employer calculates wages for other paid leave. For non-exempt employees, the rate is the higher of the applicable minimum wage, the regular hourly rate of pay for the workweek that leave was taken (including any overtime the employee may have worked), or the rate calculated when the crew member’s total wages (not including overtime) are divided by the total hours worked for the prior 90 days. The CA COVID-19 SPSL wages are capped at $511 per day and $5,110 total.

How much leave is available per the California bill?

Full-time employees are entitled to receive 80 hours of CA COVID-19 SPSL. Part-time employees are eligible for variable leave amounts based upon the hours worked. A part-time employee who has a normal weekly schedule is entitled to paid leave hours equaling the total number of hours they are scheduled to work over two weeks.

An individual who works a variable number of hours is eligible for leave time equal to 14 times the average number of hours the individual worked each day in the six months before the leave date. It is important to note, this new law requires an entirely new bank of leave for 2021. If leave was paid out under the previous CA COVID-19 SPSL (AB 1867), a new bank of paid leave is required for 2021.

New qualified reasons for California’s COVID Supplemental Leave

The new leave requirements apply to employees who are “unable to work or telework” due to a qualifying reason instead of the previous mandate’s applicability to employees who leave the home to provide work.

Furthermore, five additional qualifying reasons were added to provide leave: (1) for an employee attending an appointment to receive a vaccine for protection against contracting COVID-19; (2) if the employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work; (3) if the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis; (4) for an employee that is caring for a family member who is subject to a quarantine or isolation period, or who has been advised to self-quarantine; or (5) if the employee is caring for a child (regardless of age) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

How does the leave interact with other types of leave my production crew and staff may have available?

The new CA COVID-19 SPSL leave requirements are in addition to any paid sick leave that may be available to employees. In addition, COVID-related paid leave for the same covered reasons and provided at the same (or greater) rate since the beginning of the year may be counted towards the CA COVID-19 SPSL hours the employer is required to provide. This offset may include leave provided under any federal or local ordinances that were effective on or after January 1, 2021.

What are retroactive payments under CA COVID-19 SPSL?

If an employer already provided paid leave for COVID-19 after January 1, 2021, that leave would count towards fulfilling this CA COVID-19 SPSL requirement and no additional retroactive payment to crew members is necessary. However, if employees who took leave previously in 2021 and were not paid for that leave, the employees are entitled to retroactive wage payments.

Upon the oral or written request of the employee, the production company employer will need to provide the covered employee with a retroactive wage payment that shall be paid on or before the payday for the next full pay period after the request was received and must be reflected on the corresponding wage statement. These retroactive hours will count towards the total number of required CA COVID-19 SPSL hours. In addition, an employer may require that an employee use the CA COVID-19 SPSL to satisfy the Cal/OSHA Emergency Temporary Standard continued earnings obligation.

Pay stub requirements for COVID sick leave

Like the previous legislation, notice on employees’ wage statements is required. The Cast & Crew family of payroll providers are prepared for this requirement, and it will begin showing on production employee pay stubs beginning March 29, 2021.

Notice requirement under California SB 95

In addition to the pay stub requirement, there is a requirement that formal notice of this law be posted at the company’s place of business. If employees do not frequent a workplace, the company can satisfy the notice requirement by email. The DIR provided notice can be found here .

Does this new CA COVID-19 SPSL affect both union and non-union production employees?

Yes.

Predominantly, the COVID-19 Return to Work Agreement with DGA, IASTE, SAG-AFTRA, and Teamsters/Basic Crafts, as well as the COVID-19 Commercial Production Safety and Testing Protocol Agreement, control leave for their respective members. However, there are notable parts of the new CA COVID-19 SPSL law that apply to union members regardless of the Agreements. To start, the Agreements only relate to in-person work; the new leave law applies if a union member is unable to work remotely due to a qualifying reason.

Secondly, of the new qualifying reasons for paid leave, neither time off for an appointment to receive a COVID-19 vaccine nor time off if the member is experiencing symptoms related to a COVID-19 vaccine that prevent the member from being able to work or telework, are included in the Agreements. Therefore, in these instances the CA COVID-19 SPSL would control the leave and wage payments will be capped at $511/day.

Should a union member be provided leave under the Agreements after January 1, 2021, that leave can be offset against the leave allowance under CA COVID-19 SPSL provided the members’ pay under the Agreements was “equal to or greater than” the rate of pay to which the member was entitled under the CA COVID-19 SPSL.

Both Agreements are set to expire on April 30, 2021; should the Agreements not be renewed, the CA COVID-19 SPSL leave would control.

Submitting COVID-19 SPSL time to the Cast & Crew family of payroll providers

If your employees qualify for CA COVID-19 SPSL time, please ensure timecards are accurately marked to reflect the hours of CA COVID-19 SPSL time used. If your crew employees are using leave pursuant to a Collective Bargaining Agreement, you’ll want to ensure timecards are accurately marked with CBA RTW hours. Should a union member have a qualifying reason for CA COVID-19 SPSL time that is not included in the respective Collective Bargaining Agreement, such as remote work or vaccination issues, please ensure CA COVID-19 SPSL time is entered.

Does your production company qualify for a federal tax credit for providing this mandatory leave?

Federal law currently provides tax credits for employers with fewer than 500 employees who provide COVID-19-related paid sick leave voluntarily. More information on the tax credits is available on the Internal Revenue Service FAQs. Cast & Crew recommends speaking to your tax professional to determine eligibility.

Where can production companies find more information?

The Department of Industrial Relations has published a set of 2021 COVID-19 Supplemental Paid Sick Leave FAQs.