Under a new law California public and private employers with 26 or more employees must generally provide up to 80 hours of supplemental paid sick leave for COVID-19-related reasons. The new COVID-19 supplemental paid sick leave (2022 SPSL) is in addition to the leave provided under the previous law, which expired on Sept. 30, 2021.
Gov. Gavin Newsom signed Senate Bill 114 into law on Feb. 9, requiring covered employers to provide employees with paid sick leave if an employee or a family member is subject to a quarantine period or experiencing COVID-19 symptoms. Supplemental paid sick leave can also be taken if the employee or a family member has a vaccine appointment or cannot work due to vaccine-related side effects. The COVID-19 paid sick leave is in addition to regular paid sick leave.
The law, effective Feb. 19, 2022, applies retroactively to Jan. 1, and remains in effect until Sept. 30. The California Department of Industrial Relations has issued Frequently Asked Questions explaining the components of the new law: 2022 SPSL FAQs.
The new law provides two separate banks of 2022 SPSL. Covered employees can receive up to 40 hours from each bank of leave, for a potential total of 80 hours, depending on whether they are full-time or part-time employees. The maximum payment amount is currently $511 per day or $5,110 in total.
The first bank is available for employees who are unable to work or telework due to one of the following three reasons:
1. Caring for yourself. This applies to covered employees who (a) are quarantining or in an isolation period related to COVID-19 (pursuant to an order or guidance of the California Department of Public Health, the Centers for Disease Control (CDC) or a local public health officer with jurisdiction over the workplace); (b) have been advised by a health care provider to quarantine due to COVID-19; or (c) are experiencing COVID-19 symptoms and are seeking a medical diagnosis.
2. Caring for a family member. In this case, covered employees are caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 (pursuant to an order or guidance of the California Department of Public Health, the CDC or a local public health officer with jurisdiction over the workplace), or has been advised by a health care provider to quarantine due to COVID-19.
Additionally, covered employees may be caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises (i.e., there is concern that a person who had been in the school or place of care was exposed to or contracted COVID-19).
Like the previous law, the new law defines “family member” as a child, parent, spouse, registered domestic partner, grandparent, grandchild or sibling. A “child” is defined as a biological, adopted or foster child; a stepchild; a legal ward; or a child to whom the employee stands in loco parentis.
3. Vaccine-related. This applies to covered employees or qualifying family members being cared for by a covered employee who are attending a vaccine or vaccine booster appointment, or cannot work or telework due to related side effects.
The second bank is available for covered employees, or family members for whom they are caring, who have tested positive for COVID-19. The test can be an antigen over-the-counter rapid test or a test taken at a testing facility, as the new law does not specify the type of test and does not place conditions on how the test must be administered in order to qualify for leave.
A covered employee is entitled to take 2022 SPSL immediately upon the covered employee’s oral or written request. Employers generally may not deny a covered employee leave solely for lack of medical certification but may request documentation before paying the employee for supplemental sick leave in certain circumstances, including the following:
- If a covered employee is using 2022 SPSL that is only available after a positive test (i.e., the second bank of leave, which is also referred to as “additional leave”) or requests retroactive payment for such leave, the employee must provide the test results upon the employer’s request. Failure to provide the results is grounds for denying pay for any leave taken.
- Likewise, if the employee requests to use supplemental leave because a family member for whom the employee is providing care tests positive for COVID-19 (which also falls under the second bank of leave for “additional leave”) or requests retroactive payment for such leave, the employer may require that the employee provide documentation of that family member’s test result before paying for the leave.
- Unless verification from a health care provider is presented, employers are also permitted to limit a covered employee to three days or 24 hours of 2022 SPSL for the employee or a qualifying family member receiving a vaccine or vaccine booster and recovery from any related side effects. This limitation applies to each vaccine or vaccine booster that the employee or family member receives. Verification would likely be a note from a health care provider that the employee or family member continued to have vaccine side effects.
- Per the 2022 SPL FAQs, if the employer has other information indicating that the covered employee is not requesting 2022 SPSL for a valid purpose, the employer can request documentation. In such a case, the reasonableness of the parties’ actions will drive the outcome of the claim. As the 2022 SPL FAQs explain, for example, if a covered employee who qualifies for 2022 SPSL informs an employer that he or she must stay home due to a local quarantine order or recommendation, but the employer subsequently learns that the covered employee was out at a ballpark, the employer could reasonably request documentation.
- An employee seeks retroactive payment for 2022 SPSL (as discussed below).
If a covered employee takes supplemental leave due to testing positive for COVID-19, covered employers are also permitted under the new law to require the employee to take another COVID-19 test if five days have passed since the employee tested positive for COVID-19. Any COVID-19 test required by the employer must be made available by the employer and at no cost to the employee. If the employee fails to take the test, the employer may deny pay for any leave taken after the time the employer provides the test.
Covered employers must also provide accurate notice on the itemized wage statement (or a separate writing provided on the designated pay date) of how many 2022 SPSL hours have been used by the covered employee through the relevant pay period. Note the reported amount is what has been used, not what is available to use. The amount of 2022 SPSL used must be a separate line item. If no hours have yet been used, the pay stub or other writing issued at the time wages are paid must indicate zero.
Nonexempt Wage Rate
Nonexempt employees must be paid for each hour of 2022 SPSL that they are entitled to receive, using either of the following methods:
- The employee’s regular rate of pay for the workweek in which the leave is taken, whether or not the employee actually works overtime in that workweek
- A rate calculated 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 of 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, non-overtime wages shall be divided by all hours
Exempt covered employees must be paid for 2022 SPSL in the same manner as the employer calculates wages for other forms of paid leave time.
As previously discussed, covered employers are not required to pay more than $511 per day and $5,110 in total to each covered employee for 2022 SPSL taken. However, should the cap be reached, the covered employee may utilize other available paid leave in order to receive what the employee would normally earn.
Covered part-time employees are also entitled to 2022 SPSL. The 2022 SPSL FAQs issued by the California Department of Industrial Relations provide methods to calculate the entitlement for covered part-time employees for each bank of sick leave.
2022 SPSL payments must be paid by the payday for the next regular payroll period after the leave is taken.
Because the 2022 SPSL is retroactive to Jan. 1, eligible employees who took qualifying leave between Jan. 1 and Feb. 19 can request payment for that leave if it was not paid by the employer in the amount required under the new law. This retroactive payment is only required if, on or after Feb. 19, 2022, the covered employee makes an oral or written request to be paid for leave that qualifies. The employer will have until the payday for the next full pay period to make the retroactive payment.
Covered employers can receive credit for past paid leave provided since Jan. 1. Specifically, employers that since Jan. 1 have provided 2022 SPSL for reasons set forth in the new law, in the amount equal to or greater than what the new law requires, can credit such leave against each individual covered employee who received such payments.
Covered employers cannot require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer before such employee uses 2022 SPSL or in lieu of 2022 SPSL. Further, covered employers shall not require a covered employee to first exhaust the employee’s 2022 SPSL before satisfying any requirement to provide paid leave for reasons related to COVID-19 under any Cal/OSHA COVID-19 Emergency Temporary Standards.
The new law requires employers to display a poster on COVID-19 supplemental paid sick leave in a prominent location in the workplace. For covered employees who do not regularly come to the workplace, the employer may satisfy the requirement by disseminating the poster through electronic means.
Per the 2022 SPSL FAQs, Calif. Labor Code Section 247.5 requires that records be kept for a three-year period regarding 2022 SPSL days accrued and used, and that the records be made available to the labor commissioner or the employee upon request.
Covered employers should take care to implement the 2022 SPSL, including providing the required notice to employees and retroactive payments for covered leave taken since Jan. 1. Further, covered employers should provide requested 2022 SPSL in accordance with the law.