On February 9, 2022, California Governor Gavin Newsom approved Senate Bill 114 (“SB 114”), which entitles most California employees to a new bucket of COVID-19 supplemental paid sick leave.  The law will go into effect on February 19, 2022.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on September 30, 2021.  Calls to provide additional leave were made during the recent surge of the “Omicron” variant during the winter of 2021.  While that surge has seemingly receded in the last few weeks, the California legislature moved forward and passed SB 114 on February 7, 2022, and Governor Newsom signed it on February 9.

Types of Leave

SB 114 has many similarities to California’s prior law providing employees with COVID-19 specific paid sick leave.  Both laws apply only to employers with 25 or more employees.  Both laws also entitle most full-time employees to a total of 80 hours of paid leave, which must generally be paid out at the employee’s regular rate of pay.  One significant difference, however, is that SB 114 provides for two separate 40-hour buckets of paid leave that can be used for different purposes.  Specifically, employers must provide a maximum of 40 hours of paid leave to employees who are unable to work or telework for any of the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID-19.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
• The employee is attending an appointment to receive a vaccine or a vaccine booster for protection against contracting COVID-19.
• The employee is experiencing symptoms, or caring for a family member who is experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
• The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster, 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 is subject to a quarantine or isolation order or who has been advised to self-quarantine by their doctor.
• 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.

Employers must also provide an additional 40 hours of paid leave to employees if the employee or their family member tests positive for COVID-19.  A significant change implemented by SB 114 is that employers are now permitted to require proof of a positive test in these situations.  Specifically, the employer may require employees requesting additional leave under the second bucket to submit documentation of their positive COVID-19 status on or after the fifth day after their positive test was taken.  If the employer wishes to implement this requirement, they must pay for any testing required.

With respect to paid leave being taken for employees receiving a vaccine or booster, the employer may limit paid leave to three days, or 24 hours, unless the employee can provide verification from a health care provider that they or their family member are continuing to experience symptoms related to the COVID-19 vaccine or booster.

Notably, an employee does not need to exhaust one bucket of leave before utilizing another.

Most astute readers will realize that there could be significant overlap between these two buckets of paid leave, which runs the risk of causing significant confusion in the administration of this leave.  For example, which bucket should apply in situations where an employee tests positive and is then advised by a health care provider to self-quarantine?  While there are currently no precise answers for this and other similar questions, the California Department of Industrial Relations released a series of Frequently Asked Questions to answer more specific inquiries on SB 114 (https://www.dir.ca.gov/dlse/COVID19Resources/2022-SPSL-FAQs.html).

Retroactivity and Interactions with Other Leave Requirements

This new law is set to go into effect February 20, 2022 and will expire September 30, 2022.  Critically, it applies retroactively to January 1, 2022.  This means that if employees previously took leave that would qualify under this new law but were not compensated (or were compensated in an amount less than required under SB 114), then the employer is obligated to compensate that leave now upon a request from the employee.

The law does provide, however, that if an employer previously provided a supplemental benefit to its employees consistent with this new law, then it can count any previously paid hours against the paid leave required under this new law.

Significantly, SB 114 is intended to be separate from the Cal/OSHA Emergency Temporary Standards’ requirement that requires employers to pay employees “exclusion pay.”  Under Cal/OSHA’s ETS, employees who are excluded from the workplace because of workplace exposure to COVID-19 are to receive exclusion pay during the time spent excluded from work.  Under the previous iteration of California’s Supplemental Paid Sick Leave law, employers were requiring employees to exhaust their supplemental paid sick leave before receiving exclusion pay.  SB 114 expressly prohibits employers from doing this.

Notice and Wage Statement Requirements

Under SB 114, employers are required to place in a conspicuous area a notice listing employees’ rights to supplemental paid sick leave.  For employees who primarily telework or work away from the office, SB 114 permits employers to provide notice through alternative means, such as via e-mail.

With respect to changes to paystubs, employers are only required to enumerate whether an employee has taken supplemental paid sick leave in a specific pay period on that employee’s paystub.  Employers are not required to list the total or remaining hours of supplemental paid sick leave the employee is entitled to on each paystub.  However, supplemental paid sick leave hours must be listed separately from any other leave available to the employee.

Compliance and Next Steps

California employers need to promptly review, and likely update, their current policies and protocols to ensure they are in compliance.  Further, employers need to evaluate whether any retroactive payments need to be made for eligible leave taken since January 1, 2022.  Finally, employers should evaluate their payroll practices to ensure employee paystubs reflect supplemental paid sick leave taken in a given pay period.