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California Revives COVID-19 Supplemental Paid Sick Leave

Client Alert 

On February 9, 2022, Governor Newsom signed Senate Bill 114 (“SB 114”).  SB 114 reenacts the requirement for employers, including municipalities and all political subdivisions of the State with more than 25 employees, to provide supplemental paid sick leave for specified COVID-19-related reasons.  This requirement to provide COVID-19 supplemental paid sick leave takes effect on February 19, 2022, but applies retroactively to January 1, 2022.  The provisions of the bill expire September 30, 2022.

Although SB 114 is similar to the COVID-19 supplemental paid sick leave bill that was enacted last year and expired on September 30, 2021 (SB 95), there are some notable differences.  

Who is Covered under SB 114?

Any employee who works for an employer, including public agency employers, with more than 25 employees is entitled to take COVID-19 Supplemental Paid Sick Leave (“SPSL”).  This includes full-time, part-time, temporary, and seasonal employees.

Qualifying Reasons for Leave

Under SB 114, an employee is entitled to SPSL if the employee is unable to work or telework due to one of the following reasons:

  1. A quarantine or isolation period related to COVID-19, as required by the federal Centers for Disease Control (CDC), the California Department of Public Health (CDPH), or local public health department or officer;
  2. Advice from a health care provider for the employee to isolate or quarantine due to COVID-19;
  3. Attending an appointment for themselves or a family member to receive a vaccine or booster;
  4. Experiencing symptoms, or caring for a family member (minor or adult child, parent, spouse, domestic partner, grandparent, grandchild, or sibling) experiencing symptoms, related to a COVID-19 vaccine or booster preventing the employee from being able to work or telework;
  5. Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  6. Caring for a family member who is subject to a quarantine or isolation period due to COVID-19;
  7. Caring for a child, whose school or place of care is closed on the premises for reasons related to COVID-19.

How Much Leave Must the Employer Provide?

Full-time employees are entitled to 40 hours of SPSL. Part-time employees with regular schedules are entitled the number of hours that they regularly work in one week. Variable scheduled employees are subject to different formulas. Employers should review these requirements in order to appropriately calculate the hours for these employees.

Employees are entitled to up an additional 40 hours of SPSL if the employee, or a family member for whom the employee is caring for, tests positive for COVID-19.  In these situations, an employer is permitted to require documentation of the positive test result and to withhold paid leave for employees who do not provide documentation.  For an employee who tests positive, the employer may require the employee to take another test 5 days later, and provide the results of that test, at no cost to the employee.

Interaction with Other Leaves

SPSL is in addition to any sick leave the employee has already accrued.  An employer may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the employee before the employee uses SPSL or in lieu of SPSL. However, if an employer paid an employee another supplemental benefit for leave taken on or after January 1, 2022, that is payable for the qualifying reasons above that compensates the employee in an amount equal to or greater than what is required under SB 114, then the employer may count the hours of the other paid leave towards the total number of hours of SPSL an employer is required to provide.

Limit for Vaccination Leave

For leave taken due to symptoms related to a COVID-19 vaccine or booster, an employer may limit the total SPSL to 3 days or 24 hours unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms.

Hourly Rate of Pay for the Leave

Employers are required to pay up to $511 per day or a total of $5,110 in the aggregate.  Payment of SPSL must be reflected on the employee’s payroll as a separate pay code and must list the number of hours an employee has “used” (reporting “zero hours” if an employee has not used any SPSL).

Notice Requirements

Employers are required to provide notice to employees of their rights and obligations under SB 114.  This notice must be displayed in a conspicuous place in the workplace or disseminated by electronic means if employees are not routinely on-site.  The California Labor Commissioner is required to prepare a model notice template by February 16, 2022.

Sunset

The requirement to provide SPSL will be in effect through September 30, 2022.  However, an employee taking SPSL at the time of the expiration must be permitted to take the full amount of SPSL the employee would have otherwise been entitled to.  

Because the leave provisions under SB 114 provide new requirements and interact differently with existing paid leave entitlements, we recommend that your agency revise any existing COVID-19 leave policies to ensure compliance with the new law.

For further information, please contact Pam Lee or Yecenia Vargas from Aleshire & Wynder, LLP’s Labor & Employment Practice Group at (949) 223-1170.

Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.