On February 9, 2022, Governor Gavin Newsom signed Senate Bill (“SB”) 114 into law, reinstating COVID-19 supplemental paid sick leave. Like California’s prior COVID-19 supplemental paid sick leave law, SB 95, which expired on September 30, 2021, SB 114 requires California employers that employ more than 25 employees to provide employees up to 80 hours of supplemental paid sick leave for qualifying reasons related to COVID-19. SB 114, however, has some important differences from SB 95.
SB 114 takes effect on February 19, 2022, but it applies retroactively to January 1, 2022. SB 114 will expire on September 30, 2022.
Covered Employers and Employees
SB 114 applies to both private and public employers with 26 or more employees.[1] Covered employees include all employees who are unable to work or telework due to a qualifying COVID-19 related reason. Additionally, SB 114 allows employees to use leave to care for family members, which is defined to include children, parents, spouses, registered domestic partners, grandparents, grandchildren, and siblings.
Amount of Leave and Qualifying Reasons
As with SB 95, SB 114 provides full-time covered employees with up to 80 hours of COVID-19 supplemental paid sick leave. Unlike SB 95, however, SB 114 divides use of the 80 hours of COVID-19 supplemental paid sick leave into two different allotments of up to 40 hours each. When determining the amount of leave to which an employee is entitled, the following applies to both allotments of COVID-19 supplemental paid sick leave:
- Full-time employees include those considered full-time by the employer, as well as those who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee takes COVID-19 supplemental paid sick leave.[2]
- Part-time employees who have fixed weekly schedules are entitled to the total number of hours normally scheduled for one week.
- Part-time employees with variable schedules are entitled to seven times the average number of hours worked each day in the six months preceding the date the employee takes COVID-19 supplemental paid sick leave, not to exceed 40 hours. If the employee has worked for the employer for less than six months, the total length of their employment is used, unless the employee has been employed for seven days or less in which case the total number of hours worked is used.
Allotment 1 – Qualifying Reasons for Leave
Employees make take up to 40 hours of COVID-19 supplemental paid sick leave if they are unable to work or telework for the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation period[3] related to COVID-19 as defined 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;
- The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19;
- The employee is attending an appointment for themselves or a family member to receive a vaccine or booster for protection against COVID-19;
- The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The employee is caring for a family member who, due to concerns related to COVID-19, is subject to a government isolation order or ordered by a health care professional to self-quarantine; or
- The employee is caring for a child whose school or place of care is closed for reasons related to COVID-19 on the premises.
Notably, SB 114 allows employers to limit the use of COVID-19 supplemental paid sick leave to 24 hours (or 3 days) for the vaccine-related reasons listed above unless an employee provides verification from a healthcare provider indicating additional time is needed. This cap applies to each vaccine or booster shot.
Allotment 2 – Qualifying Reasons for Leave
Under SB 114, employees may qualify for a second allotment of up to 40 hours of leave if they test positive for COVID-19 or are caring for a family member who tested positive. If an employee is requesting leave because they are caring for a family member who tested positive for COVID-19, employers are allowed to require the employee provide documentation of the positive test result of the affected family member. Additionally, if an employee requests to use this second allotment of COVID-19 supplemental paid sick leave for their own positive test, employers may require testing on day five after the initial positive test. Employers must make such tests available to employees at no cost.
Significantly, SB 114 expressly provides that employers have no obligation to provide additional COVID-19 supplemental paid sick leave to an employee who refuses to provide documentation of the results of the test upon the request of the employer. SB 114 does not require employees to exhaust all of their COVID-19 supplemental paid sick leave under allotment 1 before using leave from allotment 2.
Rate of Pay for Non-Exempt Employees
Unlike SB 95, which required employers to use the rate of pay that was the highest under several different calculations, SB 114 aligns the regular rate of pay calculation with California’s Healthy Workplaces, Healthy Families Act. This means that for non-exempt employees, the regular rate of pay is calculated as follows:
- In the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or
- By dividing the total wages, not including overtime premium pay, by the total non-overtime hours worked, in the full pay periods occurring within the prior 90 days of employment.[4]
For exempt employees, the regular rate is calculated in the same manner as other forms of paid leave time. The amount of pay an employer is required to pay for supplemental paid sick leave is capped at $511 per day and $5,110 in the aggregate.
Interaction with Other Forms of Paid Leave
Under SB 114, an employer may not require employees to use any other paid or unpaid leave, time off, or vacation time before, or in lieu of, using COVID-19 supplemental paid sick leave, and like SB 95, COVID-19 supplemental paid sick leave is in addition to paid sick leave available under Labor Code section 246. If an employer provided supplemental paid leave (beyond regular paid sick leave, vacation time, etc.) for time off taken on or after January 1, 2022, the employer may count those hours towards the required amount of COVID-19 supplemental paid sick leave, provided the supplemental paid leave policy[5] meets the following requirements:
- The leave is payable for the reasons for leave provided under SB 114.
- The compensation for those hours is equal to or greater than the compensation the employee is entitled under SB 114.
Significantly, SB 114 also expressly prohibits employers from requiring employees to exhaust COVID-19 supplemental paid sick leave before being entitled to exclusion pay under the California Division of Occupational Safety and Health’s (“Cal/OSHA”) COVID-19 Emergency Temporary Standards (“ETS”). This means that, when an employee must be excluded from the workplace due to a workplace COVID-19 exposure under the ETS and is thus entitled to exclusion pay, an employee cannot be required to first exhaust their COVID-19 supplemental paid sick leave.
Wage Statement Requirements
SB 114 includes expanded requirements related to posting and information to be contained on wage statements. First, employers must conspicuously display in the workplace the model COVID-19 supplemental paid sick leave poster developed by the California Department of Industrial Relations (“DIR”). If employees do not frequent the workplace, employers can distribute this poster electronically (e.g., via email).
In addition, SB 114’s wage statement requirement differs from what was required under SB 95 and mandates that employers provide employees with written notice, either through a wage statement or a separate writing provided on the designated pay date with the employee’s payment of wages, that states the amount of COVID-19 an employee has used. If no COVID-19 supplemental paid sick has been used, employers should report zero hours. SB 114 provides that the number of COVID-19 supplemental paid sick hours used should be listed separately from regular paid sick days.
As SB 114 becomes effective, employers with more than 25 employees should review their sick leave policies, post the required DIR notice, update wage or sick pay statements, and take other necessary steps to ensure compliance with this new law.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.
[1] SB 114 also covers “providers” that provide in-home supportive services under the Welfare and Institutions Code to at least one eligible recipient, regardless of the number of employees.
[2] Firefighters scheduled to work more than 40 hours for an employer in the one workweek preceding the date they took COVID-19 supplemental paid sick leave are entitled to an amount of COVID-19 supplemental paid sick leave equal to the total number of hours that the firefighter was scheduled to work for the employer in that workweek.
[3] If an employee is subject to more than one isolation or quarantine period, the employee may use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period. Significantly, SB 114 expressly provides that employers have no obligation to provide additional COVID-19 supplemental paid sick leave to an employee who refuses to provide documentation of the results of the test upon the request of the employer.
[4] For nonexempt employees paid by piece rate, commission, or another method that uses all hours to determine the regular rate of pay total wages, not including overtime premium pay, must be divided by all hours to determine the correct amount of COVID-19 supplemental paid sick leave.
[5] This may include supplemental paid sick leave available pursuant to a local or federal law providing paid leave for the same reasons as SB 114.