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Feb 11, 2022

CALIFORNIA: COVID-19 supplemental paid sick leave is back

COVID-19Leave LawsWage and Hour 

On February 9, 2022, California Governor Gavin Newsom signed a new law reviving supplemental paid sick leave (SPSL). California employers with 26 or more employees will need to provide up to 80 hours of SPSL to employees who are unable to work for reasons related to COVID-19 (coronavirus).

The new COVID-19 Supplemental Paid Sick Leave Law (SB 114) takes effect on February 19, 2022. It will be retroactive to January 1, 2022, and will last through September 30, 2022. This SPSL is in addition to any paid sick leave available under the Healthy Workplaces, Healthy Families Act of 2014, California’s regular paid sick leave law.

Although the new SPSL law is similar to the 2021 SPSL law that previously expired, the new law has some important differences. Here are the provisions of the new SPSL law:

Covered employers: The law applies to employers with 26 or more employees. (The law doesn’t specify whether this is measured based on employees within California or nationwide. We recommend assuming the law applies if you employ at least 26 employees anywhere in the U.S., and at least one of them works in California.)

Reasons for leave: Employees may take leave if they’re unable to work or telework for any of the following reasons:

  • The employee must quarantine or isolate due to a COVID-19 order from the California Department of Public Health (CDPH), the federal Centers for Disease Control (CDC), or a local health officer who has jurisdiction over the workplace. (Currently CDPH’s standards for ending isolation after contracting COVID-19 are more strict than the CDC’s standards, so at this time you should follow CDPH’s guidance.) If orders or guidelines conflict, the longest minimum period applies;
     
  • The employee has been advised by a healthcare provider to isolate (after contracting COVID-19) or quarantine (after exposure to COVID-19);
     
  • The employee is attending a COVID-19 vaccine or vaccine booster appointment for themselves or a family member (the 2021 law didn’t cover family members’ vaccine appointments);
     
  • The employee is experiencing symptoms related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work, or the employee is caring for a family member experiencing these symptoms (the 2021 law didn’t cover taking care of family members recovering from a vaccination);
     
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
     
  • The employee is caring for a family member who must quarantine or isolate due to a COVID-19 order or guideline, or who has been advised by a health care provider to isolate or quarantine due to COVID-19; or
     
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

“Family member” still uses the definition from California's regular paid sick leave law: child (any age), parent, parent-in-law (i.e., parent of a spouse or registered domestic partner), spouse, registered domestic partner, grandparent, grandchild, or sibling.

Amount of time off: The 2021 law allowed a total of 80 hours of leave, but the 2022 law breaks the amount of leave available into two 40-hour allotments.

  • First bucket of leave: Employees are entitled to 40 hours of SPSL for any of the reasons listed above, if you classify them as full-time or they work (or are scheduled to work) an average of 40 hours per week in the two weeks before taking SPSL. If an employee has a normal weekly schedule that is less than full-time, the employee is entitled to SPSL equaling the total number of hours the employee is normally scheduled to work in one week. A special calculation applies to employees who work a variable schedule.
     
  • Second bucket of leave: Employees are entitled to an additional amount of leave if they test positive for COVID-19, or if a family member they are caring for tests positive. The amount of additional leave will be equal to the leave they’re entitled to for the other qualifying reasons; for full-time employees, this would be an additional 40 hours. Employees don’t need to exhaust their 40 hours of leave before they use their additional leave, and the maximum total SPSL an employee can use is 80 hours.

You can limit SPSL to 3 days or 24 hours for vaccine or vaccine booster appointments and symptoms related to the vaccine, unless the employee provides verification from a healthcare provider that the employee or family member is continuing to experience symptoms related to the vaccine or booster.

If you’re required to provide paid leave (medical removal leave) due to a work-related COVID-19 illness or exposure under the Cal-OSHA COVID-19 Emergency Temporary Standards (ETS) or the Cal-OSHA Aerosol Transmissible Diseases Standard, you cannot require the employee to exhaust their 2022 SPSL first. (Note that this differs from the 2021 law, where employers could require employees to exhaust their 2021 SPSL.)

Employees have the right to use their SPSL any time from January 1, 2022, through September 30, 2022. If an employee is taking SPSL on September 30, 2022, they can continue the leave until they use the full amount they are entitled to under this law.

Amount of pay: SPSL for exempt employees is paid at the same rate you pay for other forms of paid leave. SPSL for nonexempt (overtime-eligible) employees is paid at the highest of the following rates: (1) regular rate of pay for the workweek in which the employee takes SPSL; or (2) total wages minus overtime premium pay, divided by total hours worked in the full pay periods of the prior 90 days of employment. However, pay for SPSL is capped at $511 per day, with an aggregate maximum of $5,110 (total, if the employee uses all 80 hours of potentially available leave). Employees who reach the cap can supplement the pay with any other paid leave available to them, so they’re fully compensated for their time away from work, but they can’t be required to use other leave before or instead of using SPSL.

Leave Requests: Employees can ask for leave verbally or in writing, and you must make SPSL available to employees on request. Because the law is retroactive to January 1, 2022, employees who weren't paid in the amount required for their time off for a qualifying reason from January 1, 2022, through February 18, 2022, may request retroactive 2022 SPSL on or after February 19, 2022. You must pay the employee for their leave on or before the payday for the next full pay period after the employee’s request.

Verification of the need for leave: If an employee tests positive for COVID-19 but refuses to provide documentation of the test results upon request, you aren’t obligated to give them their additional SPSL. You can also require the employee to submit to another test on or after the 5th day of the first positive test and provide documentation of those results, and to provide documentation of a family member’s positive COVID-19 test. Other than that, the law doesn’t provide a process for requesting verification of the need for leave.

Notices to employees: Employers must provide written notice that sets out the amount of SPSL an employee has used, either on an itemized pay statement or in a separate notice provided on the designated pay date with the employee’s payment of wages. (Note that this is different from the 2021 SPSL law, which required employers to list the amount of SPSL available.) Therefore, you should expand your normal itemized pay statement to separately list the amount of 2022 COVID-19 SPSL used, in addition to your existing obligation to list the amount of regular paid sick leave available, starting on the next full pay period after the law takes effect. You should list zero hours used if an employee hasn’t used any COVID-19 SPSL.

You must also distribute the 2022 COVID-19 SPSL workplace poster, which will be available on the Labor Commissioner’s COVID-19 Guidance and Resources web page in the coming days. For any employees who don’t physically come to your workplace, you can provide the poster electronically, such as through email.

Tips: We’ve updated our Model Policy from the 2021 SPSL law, so you can now download our 2022 California Supplemental Paid Sick Leave Policy. The Labor Commissioner’s COVID-19 Guidance and Resources web page says that the Department of Industrial Relations will update the page to provide more information about the 2022 SPSL law and to address frequently asked questions.

You will need to apply SPSL retroactively for employees who have taken time off for a qualifying reason since January 1, 2022. Work with your payroll provider to ensure the appropriate disclosure of the amount of SPSL used is included in your itemized pay statements. Contact your Vigilant Law Group employment attorney if you have questions about the new law or need help addressing time off related to COVID-19.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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