Statutory Update – California Reinstates COVID-19 Supplemental Paid Sick Leave

March 4, 2022

COVID-19 Legislation

State and Local

Emergency Paid Sick Leave Updates

California

Our February 3 Statutory Update included mention that legislation reinstating “COVID-19 Supplemental Paid Sick Leave” was awaiting final approval.  On Wednesday, February 9, SB114 was signed by the governor.

Effective Date: February 19, 2022

  • COVID-19 Supplemental Paid Sick Leave (SPSL) requirements are applicable retroactively to January 1, 2022, through September 30, 2022.

Applies to:

  • All Employers with 26 or more employees, including those with Collective Bargaining Agreements;
  • Employees who are unable to work or telework.                                                                                                                                                                                                                   
    • Excludes independent contractors.

Note: The law features requirements/entitlements for firefighters and for providers of in-home supportive or waiver personal care services (all as defined) that vary from those described here.

Reasons for Use:

  1. The employee is, or is caring for a covered family member who is, subject to a quarantine or isolation period 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.

*FAQ #8 clarifies that the order or guidance must be specific to the covered employee’s circumstances. A general stay-at-home order would not count. For example, guidance or an order of a local public health officer that directs individuals who live with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking 2022 COVID-19 SPSL. See also FAQ #9.

  1. The employee has been, or is caring for a covered family member who has been, advised by a health care provider to isolate or quarantine due to COVID-19.
  2. The employee is attending an appointment for themselves or for a covered family member to receive a COVID-19 vaccine or vaccine booster.
  3. The employee is experiencing symptoms, or caring for a covered family member who is experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.
    • Employers may limit leave for this reason to 3 days or 24 hours per injection, unless the employee provides verification from a health care provider that the employee or their family member is continuing to experience related symptoms. The 3-day or 24-hour limitation includes any time used to obtain the vaccine or booster (#3 above).
  2. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  3. 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.
  4. The employee or a covered family member has tested positive for COVID-19 (see details under Leave Entitlement below).

Covered Family Members:

      • Spouse or registered domestic partner
      • Child (biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis), regardless of age or dependency status
      • Parent (biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child)
      • Grandparent
      • Grandchild
      • Sibling

Leave Entitlement:

Employees considered by the employer to work Full-Time and any employee who worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee takes SPSL, are entitled to:

    1. 40 hours for the reasons outlined above; and
    2. An additional bank of 40 hours if the employee, or a covered family member for whom the covered employee is providing care, tests positive for COVID-19.
      • Employees need not exhaust the initial 40 hours of SPSL in order to be eligible for this additional entitlement; however,
      • Employers may require employees to provide documentation of a positive COVID-19 test:
        • For leave associated with the employee’s own needs, the employer may require the employee to submit to a diagnostic test, at no expense to the employee, on or after the fifth day after the original test was taken and provide documentation of those results.
        • For leave associated with the care of a covered family member, the employer may require that the employee provide documentation of that family member’s test results.
        • Employers are under no obligation to provide this additional leave to an employee who declines to provide the requested documentation.

Note: The FAQ include that documentation may also be requested if the employee is requesting retroactive pay (see below) for leave that is available only if the employee or qualifying family member was positive for COVID-19. This documentation could include a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

  • Maximum Entitlement: 80 hours between January 1, 2022, and September 30, 2022.
  • Employees taking SPSL as of September 30, 2022, may take the full amount of SPSL to which they are entitled.

Each bank of leave described above is prorated for employees who do not fall under the “Full-Time” definition:

    • Part-Time employees with a normal weekly schedule are eligible to an amount of SPSL equal to the number of hours they are normally scheduled to work for the employer in one week.
    • Employees with variable schedules who have worked for the employer for more than seven days are entitled to an amount of SPSL equal to seven times the average number of hours they worked each day in the six months preceding the date SPSL is taken (or from start of employment, if shorter than six months).  Employees who have worked for the employer for seven days or fewer are entitled to an amount of SPSL equal to the total number of hours they have worked for the employer.

Pay:

  • Exempt employees: SPSL pay must be calculated in the same manner used to calculate wages for other forms of paid leave.
  • Non-Exempt employees: SPSL pay may be calculated either:
    • in the same manner as the regular rate of pay for the workweek in which the employee uses SPSL, whether or not the employee actually works overtime in that workweek; or
    • 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. For non-exempt 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, must be divided by all hours, to determine the correct amount of SPSL.
  • Maximum: $511 per day, $5,110 total
    • Any employee reaching the maximum dollar amount may choose to utilize other paid leave available in order to receive full compensation.
  • SPSL must be paid no later than the payday for the next regular payroll period after leave is taken.

Retroactive payments:  Upon oral or written request from the employee…

  • Any SPSL-eligible leave taken between January 1, 2022, and February 19, 2022, that was paid in an amount less than the maximum stated above must be paid retroactively.  Payment must be provided on or before the payday for the next full pay period after the employee’s request, and must be reflected on the employee’s wage statement (see Notice to Employees below). The number of hours of leave corresponding to the amount of the retroactive payment may be counted towards the total number of hours of SPSL that the employer is required to provide.
  • For any SPSL-eligible leave taken between January 1, 2022, and February 19, 2022, that was paid in an amount equal to or greater than this law’s requirements, the hours taken by the employee may be credited to the employee and to the employer as SPSL.
    • If the employee was fully paid, but leave for the absence was deducted from another leave bank that the employer provides, the employee may request that leave be restored and the deduction be made in a corresponding amount from the employee’s 2022 SPSL leave bank. The decision to restore used time is the employee’s decision.

Employer Offsets:

  • SPSL is in addition to any paid time accrued or otherwise available to the employee under the Healthy Workplaces, Healthy Families Act (CA Paid Sick Leave, CA Labor Code §245-249).
  • Employers may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time before or instead of using SPSL.
  • If an employer provided supplemental paid leave that is payable for the reasons covered by and at the same or a greater level of compensation as this law on or after January 1, 2022, the employer may count the hours of the other paid benefit or leave towards the total number of hours of SPSL required. This may include leave provided under similar law in effect or that becomes effective on or after January 1, 2022, but may not include remaining leave provided under SPSL laws previously enacted in California (including 2021 SPSL under SB95).
  • SPSL does not limit an employer’s obligation to comply with the Cal-OSHA COVID-19 Emergency Temporary Standards or the Cal-OSHA Aerosol Transmissible Diseases Standard. An employer may not require a covered employee to exhaust their SPSL before satisfying any requirement to provide paid leave under the ETS’ or ATDS’ requirements. This is a deviation from the 2021 SPSL requirements.

Notice to Employees and Recordkeeping:

Employers must:

  1. Display a poster in a conspicuous place outlining employees’ rights and responsibilities. This may be provided electronically to employees who do not frequent a workplace. (A Spanish version is also available.)
  2. Beginning the next full pay period after February 19, 2022, provide each employee with written notice that sets forth the amount of SPSL used by the employee through the pay period in which it was due to be paid on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. SPSL must be listed separately from time available under the CA Paid Sick Leave law; zero hours must be listed if the employee has not used any SPSL.

Records of hours worked and paid sick days accrued and used by each employee must be retained for three years.

Additional Notes:

COVID-19 Paid Sick Leave requirements still exist in California at the local level in Long Beach, Los Angeles City, Los Angeles County and Oakland – it remains to be seen if/how the statewide law impacts the continuation of these ordinances.

Please see our side-by-side comparison for more details on each of the Emergency Paid Sick Leave laws.

Please contact your MMA account team members with specific questions about this or other updates.

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