During 2020 and 2021, California introduced various bills that mandated COVID-19 supplemental paid sick leave for certain California employees. That leave expired in September 2021.

The most recent winter surge, related to the Omicron variant, probably cost more overall lost work hours for California employees than the summer Delta surge. As a result, the California Legislature and Governor Newsom faced increasing pressure to provide supplemental paid leave to assist employees who lost work time for COVID-19 reasons.

BASICS

Earlier this week, the California Legislature and Governor Newsom responded to the call for additional paid COVID-19 leave by enacting Senate Bill 114, which provides additional COVID-19 supplemental paid sick leave totaling 80 hours for covered full-time employees during the time period of January 1, 2022 to September 30, 2022. Part-time employees are eligible for the leave as well and the law provides a formula for determining the number of leave hours that must be provided to part-time workers.

The law goes into effect on Saturday, February 19, 2022. The leave law applies to employers in California who employ more than 25 employees, including public employers.

There are two different buckets of leave available to covered employees, each allowing for up to 40 hours of leave during the covered period.

BUCKET NUMBER 1

The bill requires employers to provide up to one week (40 hours for full-time employees) of supplemental paid sick leave (on top of any other mandatory or voluntary sick leave or PTO programs provided by the employer) to covered employees for any period between January 1 and September 30, 2022, where the following situations apply:

1. If the employee is unable to work or telework because the employee is attending a COVID-19 vaccine appointment for themselves or a family member (child, step-child, foster child, parent, step-parent, foster parent, legal guardian, spouse, registered domestic partner, grandparent, grandchild, sibling);
2. If the employee is unable to work or telework because the employee Is experiencing symptoms, or is caring for a family member who is experiencing symptoms related to a COVID-19 vaccine or vaccine booster;
3. If the employee has been advised by a health care provider to isolate or quarantine due to COVID-19 or is caring for a family member who has been advised to isolate or quarantine;
4. The employee is subject to a quarantine or isolation period related to COVID-19 as required by an order or guidance published by the California Department of Public Health (CDPH), the Centers for Disease Control (CDC), or a local public health officer who has jurisdiction over the workplace; or is caring for a family member who is subject to such an order or guidance requiring quarantine or isolation; and
5. The employee is caring for a child (including step-child or foster child), whose school or place of care is closed or otherwise unavailable due to COVID-19 related reasons.

With respect to reasons 1. and 2. above, for each vaccination/shot received, the employer may limit the total supplemental paid sick leave to 24 hours/3 8-hour days, unless the employee provides verification that the employee or family member is continuing to experience symptoms related to the COVID-19 or vaccine booster beyond the 24-hour period, in which case additional leave is required (up to the maximum of 40 hours). This 24-hour period limitation includes the leave granted for attending the vaccine appointment and is not just limited to the post-vaccine period where symptoms are present.

BUCKET NUMBER 2

In addition to the paid leave provided above, covered employees are also entitled to an additional leave of one week (40 hours for full-time employees) of paid supplemental sick leave if either:

1. The employee tests positive for COVID-19 and misses work time as a result; or
2. A family member for whom the employee is providing care, tests positive for COVID-19 and misses work time as a result.

If an employee is entitled to supplemental paid leave for either of the Bucket 2 reasons, the employer may require proof of a positive COVID-19 test and the employer has no obligation to provide additional COVID-19 supplemental paid sick leave for any employee who refused to provide documentation to support the claim of a positive test (by the employee or a qualified family member).

PAID LEAVE

The supplemental leave must be paid and must be in addition to any other leave available to the employee for illness, such as sick leave or PTO. Hourly employees must be paid at the same regular rate of pay calculation that is used and required for mandatory paid sick leave under California law.

In the alternative, the employer can calculate the wage rate to pay COVID-19 supplemental paid leave 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 ninety days of employment before the leave is taken; provided that, for nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of COVID-19 supplemental paid sick leave.

Notwithstanding the above, an employer shall not be required to pay more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate to a covered employee for COVID-19 supplemental paid sick leave taken by the employee.

In addition, California employers must not require 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.

RETROACTIVITY OF LEAVE

SB 114 expressly states that the requirements to pay COVID-19 supplemental paid sick leave “apply retroactively to January 1, 2022.” If an employee seeks retroactive pay, the employer can still require the employee to produce documentation of a positive COVID-19 diagnostic test before honoring the request.

If an employee requests retroactive COVID-19 supplemental paid leave, and the employee was not previously compensated in an amount equal to or greater than the amount of compensation required under SB 114, the employer must make a retroactive payment that provides for such compensation. The employer should pay the retroactive compensation on or before the payday for the next full pay period after the oral or written request by the employee. The employer should also make sure its payroll records/paystub accurately records and reflects this payment.

In addition, if the employee utilized other available leave for reasons covered by SB 114 and makes a request for retroactive coverage, the employer must restore any other leave hours used for COVID- specific leave purposes.

Although it is not addressed in the statute expressly, if a former employee is entitled to retroactive COVID-19 supplemental paid leave and requests it, along with the appropriate documentation, California employers should provide for such retroactive pay and should restore any PTO or other vested benefit that was used by the former employee and pay it out with the retroactive payment, if such vested benefit required payout on the date of termination.

RECORDS AND PAYSTUB REQUIREMENTS

There are two buckets of leave available under SB 114. California employers will be required to keep track of both buckets to ensure that they are administering the leave properly.

The law requires that the employer “provide an employee with written notice that sets forth the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period in which it was due to be paid.” That notice can be provided via the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. The employer shall list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.

The law does not state whether the amount of hours used should be designated on a total basis or by bucket. Either method is likely appropriate. California employers should be aware that failure to comply with this notice requirement could subject employers to penalties under the California Private Attorneys General Act (PAGA).

SUGGESTIONS

This new California COVID-19 Supplemental Paid Sick Leave creates many challenges for California employers and those who are covered by the law should consider taking the following actions:

1. Train your human resources department on the law and its requirements.
2. Publish a new policy on COVID-19 Supplemental Paid Sick Leave for 2022. Develop good procedures for tracking the leave taken and leave bank for all eligible employees, including calculating the leave banks for part-time employees.
3. Work with your payroll company to ensure that your paystubs are properly updated and if they cannot be, then ensure that a notice is provided with each paycheck that complies with the statute and sets forth the amount of leave used.
4. Keep your eye out for the California Labor Commissioner to post FAQs on this new COVID-19 paid supplemental leave law in the next few weeks. When it happens, we will provide notice here on this blog.
5. Also, keep your eye out for the California Labor Commissioner to announce a notice that must be posted in all workplaces and emailed to all remote workers related to this new COVID-19 paid supplemental leave law in the next few weeks. When it happens, we will also provide information here on this blog.
6. Evaluate the number of retroactive payments you may have to make and determine if you will make those payments automatically or wait until employees request the payments and provide the appropriate documentation, when applicable.