Yesterday, February 9, 2022, Governor Newsom signed SB 114 into law requiring most California employers to once again provide Supplemental Sick Leave Pay (“SPSL”) to their employees. The new law is similar to the state’s prior Supplemental Sick Leave Pay which expired on September 30, 2022, with some key differences. Below we outline the most important things to know about the new law.
Which Employers Must Comply with the Law?
All California employers with more than 25 employees are covered by the law.
When Does the Law Go into Effect and What Period Does it Cover?
The law goes into effect on February 19, 2022. The law is retroactive to January 1, 2022, and will be in effect until September 30, 2022.
For What Reasons Can Employees Request SPSL?
Under the new law, employees are entitled to SPSL if they are unable to work or telework due to one of the following reasons:
- The employee 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 (CDPH), the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace;
- The employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19;
- The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or a vaccine booster;
- 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 an order or guidance described above or who has been advised to isolate or quarantine, as described above; or
- 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.
How Much SPSL May Employees Receive?
The available SPSL amount will vary depending on the employee’s status. Full-time employees will be provided up to 40 hours of leave for any of the reasons stated above. However, if employee is requesting leave due to vaccine (or booster) related symptoms for themselves or their family member, the employer may limit the total leave to three days or 24 hours (per vaccine or booster). These 24 hours include the time spent getting the vaccine. If an employee requests additional leave, the employer may require verification from a healthcare provider that the employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or booster.
Rather than granting an automatic 80 hours of leave like the prior version of the law did, this new law provides for an initial 40 hours. However, employees can request up to an additional 40 hours if the employee or a family member for whom the employee is providing care tests positive for COVID-19. Of course, remember, the CDC, state and local guidelines have all changed, allowing employees to return to work within shorter time frames in many cases, even with positive COVID-19 tests.
Part-time employees with normal weekly schedules will be provided the total hours the employee is normally scheduled to work over one week. If the part-time employee’s hours vary, he/she will be allotted seven times the average hours the employee worked each day in the six months before the date the employee took COVID-19 supplemental paid sick leave (or, if the employee has worked less than six months but more than seven days, the average hours worked over the entire employment period); If the employee has worked for less than seven days, the employee is entitled to the total number of hours the employee has worked.
If a part-time employee (or family member that employee is taking care of) tests positive, that employee will be entitled to an additional number of hours equal to the number of hours they received using the above calculation.
Can Employers Require Proof of Positive Tests?
Yes. In order to prevent employee abuse, the legislature allows the employer to require the employees who test positive to submit to a diagnostic test on or after the fifth day after the first test was taken and provide documentation of those results. The test should be made available at no cost to employee. If the employee is requesting the additional SPSL due to a family member testing positive, the employer may require proof of the positive result before paying the additional leave. If the employee refuses to provide documentation of the test result, the employer need not pay the additional leave.
How is the Regular Rate of Pay Calculated Under the New Law?
For nonexempt employees, the regular rate of pay is determined in one of two ways:
- Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or
- Calculated 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; 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.
SPSL for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time. Like the prior law, the new law caps the amount of leave required to be paid at $511 per day and $5,110 in the aggregate.
How Do Employees Request SPSL?
Employers must provide SPSL upon the employee’s written or oral request. If employees request retroactive payment for leave taken (but not paid or not paid at same level as SPSL) between January 1, 2022 to February 19, 2022, the employer must pay on or before the payday for the next pay period. This means employees should be provided notice of this new law when it becomes effective.
How Does the new Law Work with Cal OSHA ETS’s Exclusion Pay Requirements?
The new law specifically states employers may not require employees excluded from work due to a workplace exposure to use their entitlement to SPSL to cover exclusion pay. Therefore, in the event an employee is forced to quarantine due to a workplace exposure, the employer would have to maintain his/her earnings and the employee would not have to use any of his/her SPSL leave available.
Are Employers Entitled to a Tax Credit for SPSL paid?
While it was expected that tax credits would be a part of the law, the version that was signed into law does not contain any tax credits for employers.
Is There Anything Else I Need to Know?
Employers are required to post a notice about SPSL similar to the notice employers post regarding regular paid sick leave under Labor Code Section 247. The Labor Commissioner will be developing a model notice shortly. Employers must also list on the paystub the amount of SPSL hours the employee has used to date. Presumably, this was to relieve employers from having to making calculations about the amount of time each employee may have available each payroll period, especially as the amount available may vary under this new law.
Who Should I Contact If I Have Any Questions?
Please contact any member of the Raines Feldman Labor & Employment Group to discuss specific concerns or questions.