California COVID-19 Supplemental Paid Sick Leave Is Back For Employers With 26 Or More Employees

On February 9, 2022 California’s Governor signed (SB 114), requiring California employers with 26 or more employees to provide COVID-19 Supplemental Paid Sick Leave (“2022 SPSL”) to employees who miss work for certain COVID-19-related reasons. The requirements of the new law applied beginning February 19, 2022; however, covered employees can seek retroactive payments for 2022 SPSL-qualifying absences back to January 1, 2022.

In many respects SB 114 mirrors last year’s COVID-19 supplemental sick leave law, which was in effect from March 19 through September 30, 2021, however, there are some differences employers need to be aware of. Below are the key provisions of the new law:

Who Is Covered?

Both private and public employers of 26 or more employees are covered by the new law including those covered by a collective bargaining agreement.

Employees of covered employers are eligible for 2022 SPSL for qualifying COVID-19-related absences between January 1, 2022 through September 30, 2022. Qualifying leaves that start on or before September 30, 2022 can extend beyond September 30, 2022, if there is sufficient 2022 SPSL covering the absence.

Special rules, not discussed here, apply to employees who are firefighters and providers of in-home supportive services (IHSS).

What Are The Maximum Amounts and Qualifying Reasons For 2022 SPSL? 

Unlike the prior law, there are two “banks” of 2022 SPSL. The first bank provides up to 40 hours for a “full-time” employee if the employee is unable to work/telework for the following qualifying reasons:

(1) Quarantine or Isolation: When the employee – or a family member[1] for whom the employee is providing care – has to quarantine or isolate on the advice of a healthcare provider or due to a public health order, including an order or guidance of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer with jurisdiction over the workplace;

(2) Vaccination and Recovery: When the employee attends an appointment for a COVID-19 vaccine or booster for themself or a family member; or when the employee is recovering, or caring for a family member who is recovering, from symptoms related to a COVID-19 vaccine or booster;

Notably, SB 114 allows employers to limit 2022 SPSL due to vaccination or related symptoms to 3 days or 24 hours per shot unless the employee provides a healthcare provider’s note requiring more time. The 3-day/24-hour limitation includes both getting the shot and recovery time.

(3) Experiencing COVID-19 Symptoms: When the employee is experiencing COVID-19 symptoms and seeking a medical diagnosis; or

(4) School/Care Closure: When the employee is caring for a child whose school or place of care is closed or unavailable for reasons relating to COVID-19 on the premises.

The second bank of 2022 SPSL leave provides an additional 40 hours for a “full-time” employee if the employee or a family member for whom the employee is providing care tests positive for COVID-19.

When the employee tests positive, the employer may require the employee take and provide the results of a diagnostic test taken on or after the 5th day from when the positive test was taken. The employer must make the test available and pay for it.

Employees do not need to use their banks consecutively or exhaust one bank of 2022 SPSL before using the other.

An employee is “full-time” if the employer considers them to be a full-time employee or if they have worked an average of 40 hours a week in the two weeks prior to taking leave. The 40 hour banks are reduced for employees who are not “full-time.” See DLSE’s Frequently Asked Questions for specific guidance on this calculation.

May An Employer Require Medical Certification?

Employers can require documentation when an employee seeks 2022 SPSL leave due to a positive COVID-19 test or when an employee seeks more than 3 days or 24 hours of 2022 SPSL for vaccination/recovery. Otherwise, employers generally cannot require medical certification.

At What Rate Is 2022 SPSL Paid?

For exempt employees, the 2022 SPSL rate is calculated in the same manner as other forms of paid leave.

For non-exempt employees, 2022 SPSL is paid at the regular rate for the workweek or may be based on a 90 day look-back similar to the calculation under California’s Healthy Workplaces Healthy Families Act. See DLSE’s Frequently Asked Questions for specific guidance on this calculation.

2022 SPSL is limited to $511 per day and $5,110.00 total. No tax credits are currently available for 2022 SPSL payments.

How Does 2022 SPSL Interact With Other Leave?

2022 SPSL is in addition to paid sick leave already required by California’s Healthy Workplaces Healthy Families Act, and employers cannot require employees to use other paid or unpaid leave, paid time off, or vacation time before (or instead of) receiving 2022 SPSL. Additionally, in a departure from the 2021 version, employers cannot require employees to exhaust 2022 SPSL prior to providing paid leave under CalOSHA’s ETS, which requires employers to maintain pay and benefits for employees who are excluded from work for reasons mandated under the ETS including a workplace COVID-19 exposure.

Employers may take credit against the 2022 SPSL obligation for another supplemental benefit for COVID-19-related sick leave if (1) the leave was for a 2022 SPSL qualifying reason and during the 2022 SPSL effective period; (2) the employee was not required to use paid leave under a policy that is not specific to COVID-19, or vacation time; and (3) the employee is paid at a rate greater than or equal to the required 2022 SPSL rate. Paid COVID-19 leave under a local sick leave law, for example, could qualify.

What Are The Notice Requirements for 2022 SPSL?

Employee paystubs must show the amount of 2022 SPSL an employee has used as a separate line item.  Unlike the previous law, paystubs do not show the amount of leave the employee has remaining. If the employee has not used any 2022 SPSL, the paystub line item for 2022 SPSL should show “zero.”

Employers must display a poster in the workplace and provide it electronically to employees who work remotely.

Where Can Employers Go For Additional Information?

The DLSE has published Frequently Asked Questions about 2022 SPSL.

If you have questions or concerns about 2022 SPSL, please contact the Rogers Joseph O’Donnell attorney with whom you regularly work or a member of our employment law team at employmentlaw@rjo.com. We are here to help.

Disclaimer:

The materials provided in this document are offered for informational and educational purposes only and are not offered as and do not constitute legal advice or legal opinions. The transmission or receipt of information through this document, or communications with Rogers Joseph O’Donnell via email does not constitute or create an attorney-client relationship between us and any recipient.

[1] A family member is the same as defined in the California Healthy Workplaces Healthy Families Act, i.e., a child, grandchild, parent, grandparent, sibling, registered domestic partner, or spouse.