With COVID-19 ramping back up, we thought it a good time to remind our California business clients about the 2022 California COVID-19 Supplemental Paid Sick Leave.
Background. On February 19, 2022, the latest iteration of California COVID-19 related Supplemental Paid Sick Leave (SPSL) went into effect. Senate Bill 114 (SB 114), signed by Governor Newsom on February 9, 2022, requires all public and private employers with 26 or more employees (including any employees located outside California) to provide qualifying California employees with paid sick time for COVID-19 related absences. The newly enacted law is retroactive to January 1, 2022 and remains in effect until September 30, 2022 (employees who are actively taking SPSL when SB 114 expires must be permitted to take the full amount of SPSL to which the employee otherwise would have been entitled).
SB 114 creates two banks of leave for any full-time, part-time, or variable hour employee who is unable to work or telework because of a qualifying reason (described below). Each leave bank allows employees to take up to 40 hours of leave, for a cumulative total of 80 hours. Any employee who was absent due to a qualifying reason between January 1 and February 19, 2022, may make an oral or written request for retroactive SPSL, which must be paid by the next scheduled pay period.*
*The law is unclear regarding employees that no longer work for the company. The law refers to covered employees, which suggests active employees. However, the Labor Commissioner’s Office has also indicated that former employees can request retroactive SPSL. Employers will have to decide what they will do if faced with this situation.
Duration of and Qualifying Reasons for SPSL. SB 114 provides up to 80 hours of SPSL, but divides the time into two separate leave bank categories. Under the first bank of leave (Bank 1), full-time employees may take up to 40 hours of SPSL for the following reasons:
Caring for Yourself: The covered employee is (i) subject to a federal, state, or local quarantine or isolation order related to COVID-19, (ii) has been advised by a healthcare provider to quarantine due to COVID-19, or (iii) is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Caring for a Family Member: The covered employee is caring for a family member who is either (i) subject to a federal, state, or local quarantine or isolation order related to COVID-19, (ii) has been advised by a healthcare provider to quarantine due to COVID-19, or (iii) the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
Vaccine-Related: The covered employee or a qualifying family member is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.
Under the second bank of leave (Bank 2), full-time employees may take up to 40 additional hours of SPSL if the employee or a family member for whom the employee is providing care, tests positive for COVID-19. Employees do not need to exhaust hours from Bank 1 to use hours from Bank 2.
Under both banks, family members include children, parents, spouses, registered domestic partners, grandparents, grandchildren, and siblings.
Covered employees may use SPSL immediately and determine how many hours of SPSL to use, up to the total number of hours to which the employee is entitled. For employees with part-time or variable schedules, SPSL is calculated in proportion to the employees’ schedules or normal hours. SPSL is in addition to any paid sick leave the employee may be entitled to. An employer may not require that an employee first use other paid or unpaid leave prior to utilizing SPSL. An employee who used another type of paid leave can get credited back the leave upon request. SPSL cannot be used for Cal/OSHA exclusion pay.
Rate of Pay. Non-exempt employees using SPSL must be compensated at either (i) their regular rate of pay, or (ii) the rate calculated by dividing the employee’s total wages, not including overtime, by the employee’s non-overtime hours in the full pay periods occurring in the 90 days prior to taking the leave. Exempt employees must be paid the same as they would be paid for other forms of paid leave.
For all employees’ SPSL pay, there is a cap of $511 per day and $5,110 total.
Certification. Under SB 114, the employer cannot ask for certification from a health care provider. However, if the employer has an independent reason to question the requested leave, the employer may be able to require certification. Additionally, employers can request verification or documentation prior to paying SPSL if: (i) the covered reason is for a positive COVID test (under Bank 2), (ii) when the employee uses more than three (3) days or 24 hours for a single vaccine appointment and recovery from related side effects (under Bank 1), or (iii) when employee is requesting retroactive pay.
Additionally, under Bank 2 only, employers may require employees who test positive for COVID-19 to take a second diagnostic test on or after the fifth day after the first positive test and provide documentation of results. The test must be made available by the employer at no cost to the employee. If the employee does not take the second test, the employer does not have to pay for additional leave taken by the employee after the fifth day.
Wage Statement and Notice Requirements. Employers must provide notice of SPSL that has been used by an employee, either on an itemized wage statement or separate writing. SPSL information must be listed separately from traditional paid sick leave information. If no hours have yet been used, the paystub or other writing must indicate zero (0).
Employers must also display this model poster that explains the nature of SB 114 in a conspicuous location at all workplaces. If employees do not frequent the workplace, then the notice may be distributed electronically.
Conclusion. As SB 114 is currently in effect, employers with 26 or more employees, including at least one in California, should review their sick leave policies, update their wage or sick pay statements, and ensure they are in full compliance with the new law.