CA Requires COVID-19 Supplemental Paid Sick Leave Again

Posted on February 11, 2022

California has enacted legislation (Senate Bill 114) that requires employers with more than 25 employees to provide up to 80 hours of COVID-19 supplemental paid sick leave to employees. The COVID-19 supplemental paid sick leave requirement is effective on February 19, 2022, is retroactive to January 1, 2022 and will remain in effect through September 30, 2022.

The Details:

For employees who work 40 or more hours (or the employer considers the employee full time), the employer must provide up to 40 hours of COVID-19 supplemental paid sick leave if the employee is unable to work or telework because they:

  • Are subject to a quarantine or isolation period related to COVID-19.
  • Have been advised by a healthcare provider to isolate or quarantine.
  • Are attending a vaccine or vaccine booster appointment for an employee or a family member.
  • Are experiencing symptoms from a vaccine or caring for a family member who is experiencing symptoms (this can be limited to three days or 24 hours, unless the employee provides verification from a healthcare provider that the employee or family member is continuing to experience symptoms).
  • Are experiencing symptoms of COVID-19 and seeking medical diagnosis.
  • Are caring for a family member who is subject to a quarantine or isolation period or who has been advised to isolate or quarantine.
  • Are caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Additional Leave Allotment:

In addition to the leave described above, employees are entitled to take up to 40 hours of paid sick leave if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. Employees are not required to exhaust the other bank of COVID-19 supplemental paid sick leave before accessing the 40 hours additionally provided as a result of a positive COVID-19 test.

Note: If the employee tests positive for COVID-19, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the test was taken and provide documentation of those results. The employer must make such a test available at no cost to the employee.

Part-Time Employees:

For each of the two banks of leave, employees who work less than 40 hours and work a normal schedule are entitled to the total number of hours they are normally scheduled to work over one week. A different calculation is used for part-time employees who work a variable schedule. See the text of the law for details.

Pay During Leave:

During COVID-19 supplemental paid sick leave, a nonexempt employee must be compensated at a rate at least equal to one of the following:

  • Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, regardless of whether the employee actually works overtime in that workweek.
  • 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 occurring within the prior 90 days of employment.

An exempt employee must be compensated at a rate calculated in the same manner as the employer calculates wages for other forms of paid leave.

Note: For such leave, employers are not required to compensate employees more than $511 per day or $5,110 in total.

Wage Statement Requirements:

Employers must provide employees with written notice that sets forth the amount of COVID-19 supplemental paid sick leave the employee has used through the pay period in which it was due to be paid, either on an itemized wage statement or in separate writing provided on the designated pay date. Employers will have until the next full pay period after February 19, 2022 to comply with this requirement. COVID-19 supplemental paid sick leave must be set forth separately from paid sick leave.

Note: The employer must list zero hours used if the employee has not used any COVID-19 supplemental paid sick leave.

Poster Requirements:

Employers must post a notice about employees' rights under the law. An employer may satisfy this requirement for workers who do not frequent a workplace by disseminating the notice through electronic means, such as e-mail.

Retroactive Payments:

Employers have until February 19, 2022 to start providing such leave. Since the law applies retroactively to January 1, 2022, if an employee took qualifying leave from January 1, 2022 to February 19, 2022, and makes a request for retroactive payment, the employer must provide it. The retroactive payment must be paid on or before the payday for the next full pay period after the request and should be reflected on the written notice for the pay period. If an employee makes such a request and was already compensated in an amount equal to or greater than the amount required under COVID-19 supplemental paid sick leave, the employee should be credited for the leave hours that were used.

Interaction with Other Leave Laws and Policies:

The COVID-19 supplemental paid sick leave is in addition to any paid sick leave that may be available under existing law. Employers are prohibited from requiring an employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.

Employers are also prohibited from requiring an employee to first exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide paid leave for reasons related to COVID-19 under Cal-OSHA COVID-19 Emergency Temporary Standards or the Cal-OSHA Aerosol Transmissible Diseases Standard.

However, if an employer paid another supplemental benefit for leave taken on or after January 1, 2022, that is payable for the reasons listed in Senate Bill 114 and that compensates the employee in an amount equal to or greater than required above, the employer may generally count it toward meeting the requirements of Senate Bill 114. This cannot include paid sick leave required under Labor Code Section 246. It also cannot include leave provided under Labor Code Section 248(e) (a now expired COVID-19 leave for food sector employees) or Labor Code Section 248.1(f) (a now expired COVID-19 leave for employees of employers with 500 or more employees), but it may include leave under federal law and local ordinances if the criteria are met. See the text of the law for details.

Special Rules:

There are special rules for in-home supportive services and firefighters under the law. See the text of the law for details.

Next Steps:

Covered employers should:

  • Read the text of the law in full and ensure compliance.
  • Train supervisors on how to handle requests for the leave.
  • Post the required notice when made available by the state (expected on or before February 16, 2022).
  • Review and revise policies and practices if necessary.