Caitlin I. Sanders and Alix L. Udelson
On February 9, 2022, California Governor Newsom signed into law Senate Bill (“SB”) 114.
The law reinstates the COVID-19 supplemental paid sick leave (“CSPSL”) requirement for companies with more than 26 employees. Like California’s prior CSPSL iteration, which expired on September 30, 2021, the new law provides up to 80 hours of CSPSL for full-time employees for certain COVID-19-related reasons. The law takes effect immediately, but the obligation to provide CSPSL does not begin until February 19, 2022. The law is currently set to remain in effect through September 30, 2022.
Here are the pertinent details that employers need to know:
Covered Employers: SB 114 covers all employers in California with more than 25 employees. Employers with 25 or fewer employees are not covered.
Covered Employees: SB 114 covers employees who are unable to work or telework due to any of the reasons that qualify for CSPSL (detailed below).
Amount of Leave: Full-time employees are entitled to up to 80 hours of CSPSL for qualifying reasons. Part-time employees are provided a prorated amount of this benefit. This leave is in addition to regular paid sick leave already required under California law.
Qualifying Reasons for Leave: The new law establishes two separate “buckets” of qualifying reasons for leave, each providing up to 40 hours of CSPSL:
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- “Bucket” # 1: Up to 40 hours of CSPSL may be taken if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19.
- “Bucket” # 2: Up to 40 hours of CSPSL may be taken for covered COVID-19-related reasons, including when the employee: (1) is subject to a quarantine or isolation period related to COVID-19; (2) has been advised by a healthcare provider to isolate or quarantine due to COVID-19; (3) is attending an appointment for themselves or a family member to receive a vaccine/booster; (4) is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine/booster that prevents the employee from working or teleworking; (5) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (6) is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine; or (7) is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
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The law does not address many important questions about the potential interplay between the different “buckets” of leave (e.g., what if an employee experiences more than one CSPSL-qualifying event simultaneously, yet the events, in isolation, fall under different “buckets”?). The California Labor Commissioner published guidance on similar questions in connection with previous CSPSL laws. While the Labor Commissioner has not yet done so for this version, employers should be on the lookout for future guidance that might clarify ambiguities in this new CPSL law.
Documentation: As opposed to the prior CSPSL law, which limited employers’ ability to require documentation as a condition for providing the leave, employers may now require documentation supporting the use of CSPSL in some situations:
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- For each vaccine or booster, employers may limit the total CSPSL to three days or 24 hours, unless the employee provides verification from a healthcare provider that additional time off is needed.
- Employers may require proof of an employee’s or family member’s positive COVID-19 test, and if an employee refuses to provide proof, the employer does not need to provide CSPSL.
- Employers may also require employees to submit to a diagnostic test on or after the fifth day off and require documentation of results. Any such test must be made available to at no cost to the employee.
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Recordkeeping/Notices: Employers are required to provide employees with written notice that lists the amount of CSPSL that the employee has used through the pay period in which it was due to be paid on the employee’s pay stub. Employers should list zero hours on the employee’s paystub if the employee has not used any CSPSL. Additionally, employers must post a notice regarding the new CSPSL requirement (or make it available electronically for remote workers). The Labor Commissioner will develop a model notice for this purpose.
Rate of Pay: CSPSL can be paid at the employee’s regular rate of pay for the workday. Pay is capped at $511 per day and $5,110 total per employee. Employers are not required to pay out unused CSPSL upon termination of employment.
Retroactive Designation of Leave: Employers are required to make retroactive CSPSL payments for qualifying absences since January 1, 2022, that were either unpaid or not paid at the level required by SB 114, upon an employee’s request. Employers, however, cannot unilaterally apply this leave retroactively.
Interaction with Other Leaves: CSPSL must be provided in addition to other forms of paid sick leave, but employers may in some cases be able to offset previously provided COVID-19-related leave under the employer’s policy or a local ordinance. In addition, SB 114 prohibits employers from requiring employees to first use or exhaust CSPSL before paying other types of leave (e.g., exclusion pay).