A bill (SB 114) was passed restoring supplemental paid sick leave for COVID-19 which previously expired on September 30, 2021. The bill was signed by Governor Newsom on February 9, making it effective 10 days thereafter, and it will apply retroactively to January 1, 2022. The COVID-19 supplemental paid sick leave would in addition to any paid sick leave or other paid time off the employer provides. Employers would be prohibited from requiring employees to use or exhaust any other employer-provided leave or paid time off before using COVID-19 supplemental paid sick leave. The law will remain in effect through September 30, 2022.
The law applies to employers with more than 25 employees, and would require supplemental paid sick leave, up to a total maximum of 80 hours of paid leave, to be used in separate 40-hour buckets based on the need for for leave as outlined below:
The First 40 Hours of Paid Leave
Full-time employees are entitled to take up to 40 hours of COVID-19 supplemental paid sick leave for the reasons unrelated to testing positive for COVID-19. Leave for part-time employees will depend on their typical weekly schedule.
Employees may use the first 40 hours of paid leave if they are unable to work or telework because of various COVID-19-related reasons, including:
- Following quarantine or isolation advice of health care providers or federal, state, or local public health authorities or caring for a family member who is doing so;
- Attending vaccination appointments for themselves or a family member, including booster shots*;
- Experiencing symptoms or caring for a family member experiencing symptoms related to COVID-19 vaccinations*;
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis; or
- Caring for a child whose school or childcare location is closed or unavailable because of COVID-19.
* For leave connected to COVID-19 vaccination, employers may impose a limit of three days or 24 hours, unless the employee provides verification of the need for additional leave from a healthcare provider.
The Second 40 Hours of Paid Leave
An addition 40 hours of paid leave may be available to employees who test positive for COVID-19 themselves or have a family member for whom they are providing care test positive for COVID-19.
Employers may require the employee to provide documentation of their positive test result or the positive test result of a family member.
Employers may also require employees who use the second 40 hours of paid leave to test on day five after the initial positive test, but employers must make tests available to employees at no cost.
Pay During Leave
Generally, employees must be paid in the same manner as the regular rate of pay for the workweek in which they use paid sick time, regardless of whether the employee actually works overtime in that workweek. Alternatively, the rate pay may be determined by dividing the employee’s total wages, excluding 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. For employees paid by other methods, such as commissions and piece rate total wages, excluding overtime would be divided by all hours.
The law would cap the required compensation for covered employees at $511 per day and $5,110 total for a single employee. If an employee has reached these caps, they are permitted to use other available paid leave, as permitted by law or company policy, to ensure that they receive full compensation during leave.
Employer Notice Requirements
Employers would also be required to include information detailing the amount of COVID-19 supplemental paid sick leave an employee has used on or with the employee’s pay statement each pay period and to post a written notice regarding the availability of COVID-19 supplemental sick leave. The California Labor Commissioner has made a model notice available for download.
Employers who provide supplemental paid leave (beyond regular paid sick leave, vacation time, etc.) for time off taken on or after January 1, 2022, may count those hours towards the required amount of COVID-19 supplemental paid sick leave if the supplemental paid leave policy was provided for reasons covered under SB 114 and employees were paid an amount which met or exceeding the pay requirements under the bill.
Employees do not need to exhaust all paid leave from the first bank before using paid leave from the second bank. Notably, a provision under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) still requires that employers provide paid leave in certain situations to employees who are excluded from the workplace due to exposure to COVID-19 but under SB 114, employers cannot require exhaustion of COVID-19 supplemental paid sick leave before receiving exclusion pay, so employees may receive pay under the ETS in addition to this paid leave. Whereas, under the prior version of COVID-19 supplemental paid sick leave, exclusion pay was paid from the employee’s available COVID-19 supplemental paid sick leave.
Next Steps for Employers
It is recommended that employers review and if needed, make plans to update company procedures and policies to comply with the requirements. Employers should also consider how they will code the paid leave in their payroll and time and attendance systems to ensure accurate record keeping and payment for leave. In addition, ensure the required poster is posted in a prominent location and/or provided in electronic format to employees.
Employers should consult with their legal counsel if concerns arise regarding your company’s compliance requirements.