California’s Latest Foray Into COVID-19 Sick Leave

By editor on February 17, 2022

On February 9, 2022, Governor Newsom signed into law Senate Bill 114 which provides for Supplemental Paid Sick Leave related to COVID-19. The law is retroactive to take effect January 1, 2022, and it will stay in effect until September 30, 2022. It will be part of the California Labor Code as Section 248.6.

Who Does the Law Cover?

Similar to SB 95 passed in March 2021, SB 114 applies to businesses with more than 25 employees. It provides for supplemental paid sick leave for employees who are unable to work or telework due to certain reasons related to COVID-19, including:

  • Attending a COVID-19 vaccine or vaccine booster appointment for themselves or a family member;
  • Experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster;
  • The employee is, or the employee is caring for a family member who is, subject to a quarantine or isolation period related to COVID-19 by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace;
  • They have been advised by a health care provider to isolate or quarantine due to COVID-19;
  • They are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • they are caring for a child, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

For employees taking leave due to vaccine or booster related categories, the leave is limited to 3 days, or 24 hours, unless the employee provides verification from a healthcare provider that the employee or family member is continuing to suffer from symptoms related to the vaccine or booster.

How is Eligibility for the Full Amount of Leave Calculated?

Employees who are eligible for the full 40 hours of leave are those who work full time or those who were scheduled to work full time for at least two weeks prior to taking the leave. This does not apply to firefighters who may be eligible for more than 40 hours depending on their work schedule.

If an employee is not full time, they are entitled to some portion of the 40 hours. The amount is determined as follows:

  • If the employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work for the employer over one week;
  • If the employee works a variable number of hours, seven times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. If the covered employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation shall instead be made over the entire period the covered employee has worked for the employer;
  • If the employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, their total leave hours is the number of hours the employee has worked for that employer.

In addition to the COVID-19 supplemental paid sick leave described above, employees are entitled to an additional 40 hours of COVID-19 supplemental paid sick leave if the covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.

The employer is allowed to require the employee, if that employee or their family member tests positive, to submit to another test on or after the fifth day after the first positive test and provide documentation of those results for the employee or their family member. An employer is not obligated to pay any of this additional 40 hours of supplemental leave if the employee refuses to provide documentation of the test results.

An employee does not need to exhaust the initial 40 hours of leave to be eligible for the 40 hours of supplemental leave in the event they or a family member tests positive. However, the employee will not be given more than 80 hours of supplemental paid sick leave under this law.

How is the Pay Calculated?

To calculate the pay, it is generally the employee’s regular rate of pay, however, employers should refer to the statute itself depending on their needs and employee classifications as there are very specific calculations detailed in the language of the statute.

An employer shall not be required to pay more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate.

An employee is not required to exhaust their available sick/vacation/other PTO time or take their sick/vacation/other PTO time in lieu of taking the supplemental leave.

Who is in Charge?

The Labor Commissioner is responsible for enforcing these COVID-19 supplemental paid sick leave provisions, as provided. The Commissioner is to make publicly available a model notice relating to COVID-19 supplemental paid sick leave.

What Does This Mean for Employers?

Since the law is retroactive, employers who have more than 25 employees need to ensure that any sick time provided for any of the reasons listed above (employee or family member got the vaccine or tested positive for Covid) is properly accounted for as Supplemental Paid Sick Leave (SPSL) and not taken from their regular bank of sick/vacation/other PTO time.

This means employers should go back through their records and determine if any sick leave taken by employees since January 1, 2022, is qualifying SPSL leave. If so, they must readjust their regular sick leave accordingly, as well as ensure this recalculation is properly reflected on pay stubs.

An employer can require proof of positive tests for retroactive sick leave that the employee is now requesting to be paid under this new law. Going forward, employers need to ensure that if an employee takes leave under this law, any sick pay paid to the employee is identified as a SPSL payment and that all employees are shown on their paystubs the SPSL hours taken. If an employee has not taken any hours of their SPSL time, the hours listed should be “0.”

This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, please contact Melanie Massey.