The California legislature passed a new bill, SB 114, that awaits Governor Newsom’s signature. The bill reenacts a supplemental paid sick leave (“SPSL”) requirement for companies with more than 25 employees and will be retroactive to January 1, 2022. It is currently set to expire September 30, 2022, but, well, we know how that goes…

Like its prior iteration of SPSL which expired September 30, 2021 (SB 95), the new law provides up to 80 hours of SPSL for full-time employees. However, there are notable differences imposed in the new law, which we outline below:

• The new SPSL law establishes two categories of up to 40 hours of leave each.
• 40 hours of SPSL are available if a covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.
• An additional 40 hours are also available for a covered employee a) who is subject to a quarantine or isolation period related to COVID-19; b) has been advised by a health care provider to isolate or quarantine; (c) is attending an appointment for themselves or a family member to receive a vaccine/booster or is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine/booster; d) who is experiencing symptoms of COVID-19 and seeking a medical diagnosis;  e) is caring for a family member who is subject to a quarantine or isolation order or has been advised to isolate or quarantine; or f) an employee caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
• For each vaccination or vaccine booster, an employer may limit the total COVID-19 supplemental paid sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that additional time is needed.
• Employers may require proof of an employee or family member’s positive test result. SB 114 specifically states that the employer shall make such a test available at no cost to the employee.
• Employers cannot require use of SPSL prior to paying exclusion pay under Cal/OSHA, which is contrary to SB 95.
• Employers may only offset leave taken after January 1, 2022 and must do so upon an employee’s request.
• SPSL can be paid at the “regular rate of pay” for the workweek, up to $511 per day.
• SPSL must be listed separately from regular paid sick leave on employee pay stubs.  The employer should list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave. This requirement is not enforceable until the next full pay period following the date that the law takes effect, which will be 10 days after the governors signs it.
• There will be a new notice requirement for SB 114, yet to be developed by the Labor Commissioner.
• There is no direct tax credit to offset the cost of SPSL. There is talk of perhaps enacting such a credit during the budgeting process.

Employers subject to SB 114 should start determining whether they can offset any leave taken since January 1st and if any rate adjustments need to be made to do so, In addition, employers  should plan for the paystub requirement and for issuing the proper notice once publicly available.

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