California Enacts COVID-19 Supplemental Paid Sick Leave For 2022

Governor Newsom signed California Senate Bill 114 (“SB 114”) into law requiring employers who have more than 25 employees to provide Supplemental Paid Sick Leave (“SPSL”). The Supplemental Paid Sick Leave law creates new California Labor Code Section 248.6 and takes effect on February 19, 2022, and will remain in effect until September 30, 2022.

The law requires employers to provide Supplemental Paid Sick Leave to employees retroactively back to January 1, 2022. This law broadens the reasons employees can take COVID-19 sick leave, as specified below. It also permits employers to request proof of a positive COVID-19 test as to the employee or the employee’s family member if the leave takes longer than 5 days.

SPSL must be available for immediate use by the employee, upon oral or written request.  An employee may determine how many hours of SPSL to use, up to the total number of hours to which the employee is entitled. 

Employees are entitled to 80 total hours of supplemental sick pay which is categorized into two 40-hour buckets of sick leave under this new law as follows:

Eligible employees may be entitled to up to 40 hours if an employee cannot work because:

  • Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
  • Employee is attending a vaccination appointment for themselves or a family member to receive a COVID-19 vaccine or the booster;
  • Employee is subject to quarantine related to COVID-19 or caring for a family member who is;
  • Employee is advised by a health care provider to isolate due to COVID-19 or caring for a family member who is;
  • Employee or employee’s family member is experiencing symptoms related to a COVID-19 vaccine;  
  • Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

An additional 40 hours of leave is also available to employees who test positive for COVID-19 or need to care for a family member who tests positive. 

For each vaccination or booster shot, the employee is limited to three days or 24 hours of SPSL unless the employee provides certification from a health care provider that the employee or family member is continuing to experience symptoms related to the vaccination or booster.

Employers must post a notice of the new requirements in a conspicuous place in the workplace or disseminate by electronic means if the employees do not frequent a workplace. The California Labor Commissioner is required to publish a model notice within seven days of the statute’s enactment (by February 16, 2022).

In addition, employers must provide the amount of used Supplemental Paid Sick Leave on the employee’s wage statement or a separate writing provided with the employee’s pay. 

Nonexempt employees must be paid SPSL at the employee’s “regular rate of pay” or via a calculation made by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment. 

Exempt employees’ SPSL should be paid in the same manner as the employer calculates wages for other forms of paid leave time. Employers are not required to pay more than $511 per day or $5,110 in the aggregate to an employee for SPSL.

There is currently no structure in place to reimburse employers for COVID supplemental sick leave pay.

While this legislation is effective immediately, employers have until February 19th to implement their new COVID supplemental sick pay policies and issue related payments

More information will be released by the Department of Industrial Relations about this leave in the coming days.

For further information, questions, or assistance, please contact our firm.

By: Renia Zadourian, Esq.