By Shaye Schrick and Caroline Colangelo

On February 9, 2022, Governor Gavin Newsom signed SB 114, reinstating COVID-19 supplemental paid sick leave for qualifying employees of employers with 26 or more employees.  The bill is similar in some respects to last year’s COVID-19 supplemental paid sick leave law that expired on September 30, 2021, with some significant changes discussed below.

Labor Code section 248.6 applies to employers generally and includes special provisions for firefighters; Labor Code section 248.7 applies to providers of in-home supportive services.  This summary addresses only Labor Code section 248.6, applicable to employers generally, without reference to the specific provisions applicable to firefighters.

The obligation to pay COVID-19 supplemental paid sick leave does not begin until February 19, 2022; however, the law applies retroactively to January 1, 2022 and extends until September 30, 2022; provided, however, that employees who are taking such leave as of September 30, 2022 must be permitted to continue receiving paid time off after that date until the employee returns to work or runs out of available COVID-19 supplemental paid sick leave, whichever occurs first.

Qualifying Reasons

The law includes two COVID-19 paid sick leave banks of up to 40 hours each, which are available for use immediately upon an employee’s oral or written request.

Under the first bank, a covered employee who is unable to work or telework is entitled to COVID-19 supplemental paid sick leave for any of the following reasons:

1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state, or local order or guidance;
2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19;
3. The employee is attending an appointment for him/her/themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19;
4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework;
5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
6. The employee is caring for a family member who is subject to a federal, state, or local order or guidance related to COVID-19;
7. The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

The second bank provides additional COVID-19 supplemental paid sick leave where the employee or a family member for whom the employee is providing care tests positive for COVID-19.

Employees do not need to exhaust the first bank before using the second bank of leave.  For instance, if an employee tests positive for COVID-19, the employee may use hours from the second bank before using any hours in the first bank.  If the school of the employee’s child is subsequently closed due to COVID-19 on the premises, the employee may then use hours from the first bank.

Amount of Leave

Employees determine how many hours of COVID-19 supplemental paid sick leave to use from each bank up to the total amounts below.

An employee is entitled to 40 hours of COVID-19 supplemental paid sick leave in the first bank if the employer considers the employee full time or if the employee worked or was scheduled to work, on average, 40 hours per week in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.  All other employees are entitled to leave consistent with one of the following:

1. If the employee has a normal weekly schedule, the total number of hours the employee is normally scheduled to work for the employer in one week, or
2. If the employee works a variable number of hours:
   1. If the employee has worked for the employer for six months or more, seven times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee takes supplemental paid sick leave;
   2. If the employee has worked for the employer for more than seven days but fewer than six months, seven times the average number of hours the employee worked each day for the employer during the period of employment; or
   3. If the employee has worked for the employer for seven days or fewer, the total number of hours the employee worked for the employer.

An employee is entitled to an additional bank of hours, up to 40 hours using the same calculations set forth above, if the employee or a family member for whom the employee is providing care tests positive for COVID-19.

For each vaccination or vaccine booster, an employer may limit COVID-19 supplemental paid sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that the covered employee or the employee’s family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

Employers may not require covered employees to use any other paid or unpaid leave (including CA paid sick leave), paid time off, or vacation time before using COVID-19 supplemental paid sick leave or in lieu of providing it.  In addition, employers may not require covered employees to first exhaust their COVID-19 supplemental paid sick leave before satisfying any requirements to provide paid leave for reasons related to COVID-19 under the California Division of Occupational Safety and Health’s (“Cal/OSHA”) Emergency Temporary Standards or Cal/OSHA’s Aerosol Transmissible Diseases Standard, which set forth specific requirements related to exclusion and exclusion pay for COVID-19 cases and COVID-19 exposure.  This is a significant change from 2021’s COVID-19 supplemental paid sick leave law.

Rate of Pay

Qualifying leave for nonexempt employees must be calculated in one of two manners:

1. In the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or
2. By dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment; provided that, for nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of COVID-19 supplemental paid sick leave under this subdivision.

Qualifying leave for exempt employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

However, unless the employer voluntarily chooses to pay more, the amount owed shall not exceed $511 per day and $5,110 in total unless federal legislation is enacted that increases these amounts.

Retroactive Application

Employees who took time off for qualifying reasons between January 1, 2022 and the date the law takes effect are entitled to COVID-19 supplemental paid sick leave for that time off upon oral or written request.  That time is to be paid on or before the payday for the next full pay period after the employee’s request.

If the employer paid a covered employee another supplemental benefit (not including sick pay under California’s Health Workplaces Healthy Families Act) for leave taken on or after January 1, 2022, for the qualifying reasons and at an amount equal to or greater than the amount required by SB 114, the employer may count the hours of the other paid benefit/leave toward hours required by SB 114.  In such situations, the employee must be credited for any leave hours used for COVID-19 specific reasons and the employer should be credited for providing those hours as COVID-19 supplemental paid sick leave.

Documentation

Employers may require employees to provide proof of a positive diagnostic test result when using leave because the employee or the employee’s family member tests positive for COVID-19, and may deny leave if the employee refuses to provide such documentation.  In addition, employers may require employees to take a second diagnostic test on or after the fifth day following the first test and provide documentation of the results so long as the employer makes the test available to the employee at no cost to the employee.

In addition, for leave related to a vaccine or booster, employers may require verification from a health care provider that an employee or employee’s family member is continuing to experience symptoms related to the vaccine or booster where the employee is requesting more than three days or 24 hours of leave for each vaccine or booster.

Like 2021’s COVID-19 supplemental paid sick leave law, SB 114 does not contain any provisions allowing employers to request documentation to substantiate the need for leave for other qualifying reasons.

Wage Statement Requirements

COVID-19 supplemental paid sick leave hours must be documented separately from other paid sick days on employees’ wage statements or in a separate writing provided on the designated pay date with the employee’s payment of wages.  However, unlike the previous legislation, employers are only required to set forth the amount of COVID-19 supplemental paid sick leave used by an employee through the pay period in which it was due to be paid, as opposed to including both the amount used and the amount available in the employee’s leave bank.  If an employee has not used any COVID-19 supplemental paid sick leave, the employer shall list zero hours used on the wage statement or separate writing.

Notice

The Labor Commissioner must make publicly available a model notice regarding COVID-19 supplemental paid sick leave within seven days after the legislation’s enactment.  Employers must display the notice in a conspicuous place at the worksite. If an employer’s covered employees do not frequent a worksite, the employer may satisfy the notice requirement by disseminating notice through electronic means.

In addition, it is anticipated the Labor Commissioner will provide FAQs regarding the new law.

For more information about SB 114, California employers should consult with counsel.

Legal Disclaimer: