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On February 9, California Governor Gavin Newsom signed legislation (Senate Bill 114) providing up to two additional weeks of paid time off if an employee is sick with COVID-19, or if they have to take care of a family member who contracts the disease. The law takes effect immediately and is retroactive to January 1, 2022, but an employer’s obligation to provide 2022 COVID-19 supplemental California paid sick leave (CPSL) does not begin until 10 days after the governor signs: February 19, 2022. Leave is available through September 30, 2022.

The law is similar to legislation that expired in September last year.

What kinds of employers are covered?

Small businesses are exempt. The new law only applies to businesses with 26 employees or more.

Who are covered employees?

Covered employees are those unable to work or telework due to certain reasons related to COVID-19, including:

A.  The covered 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, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period.

B.  The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.

C.  The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to the limitation in clause (ii) of subparagraph (D).

D.  (i) The covered 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.

(ii) 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 the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster. The 3-day or 24-hour limitation applied to each vaccine or vaccine booster includes the time used under subparagraph (C) to get the vaccine or vaccine booster.

E.  The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

F.  The covered employee is caring for a family member who is subject to an order or guidance described in subparagraph (A) or who has been advised to isolate or quarantine, as described in subparagraph (B).

G.  The covered employee is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

What are covered employees entitled to?

  • Covered employees are entitled to an initial 40 hours of COVID-19 supplemental paid sick leave if they work full time or they were scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employees take COVID-19 supplemental sick leave.
    • If the covered employee is part time, but has a “normal weekly schedule,” the employee may take the “total number of hours the covered employee is normally scheduled to work for the employer over one week.”
    • If the covered employee is part time, has a variable schedule, and has worked for the employer for more than seven days, the covered employee may take seven times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave.
      • If the covered employee has worked for the employer over a period of fewer than six months, but more than seven days, the calculation is made over the entire period the covered employee has worked for the employer.
    • If the covered employee works a variable schedule and has worked for the employer over a period of seven days or fewer, the covered employee may take the total number of hours the employee has worked for the employer as COVID-19 supplemental paid sick leave.
  • Covered employees are entitled to additional COVID-19 supplemental paid sick leave in an amount not to exceed the above entitlements (e.g., a full time employee can take another 40 hours) if the covered employee or a family member for whom the family member is providing care tests positive for COVID-19.
    • If the employee tested positive, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the initial test was taken and provide documentation of those results. The employer shall make such a test available at no cost to the employee.
    • If the employee requests to use additional leave because a family member for whom they are providing care tests positive for COVID-19, the employer may require that the employee provide documentation of that family member’s test results before paying the additional leave.
    • The employer has no obligation to provide additional COVID-19 supplemental paid sick leave for an employee who refuses to provide documentation of the results of the test upon the request of the employer.

How do employers calculate the applicable rate of pay?

For non-exempt covered employees, by one of the following:

  • 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.
  • Calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total nonovertime 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 under this subdivision.

For exempt employees, CPSL should be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Note that employers are not be required to pay more than $511 per day and $5,110.00 in aggregate to a covered employee.

Do employers have any notice and / or posting obligations?

Yes. Within seven days of the date of enactment, the Labor Commissioner will make a model poster publicly available. Employers must conspicuously display the poster. Note that if employees do not frequent a workplace, employers may distribute the poster via email.

As with the earlier law, employers must include information concerning CPSL on itemized wage statements (pay stubs) or other written notices employees receive on payday. The law specifies that the paystub requirement is not enforceable until the next full pay period following February 19, 2022. Further, CPSL and pre-COVID statutory paid sick leave must be displayed separately, and retroactive payments must be on the paystub for the pay period during which payment is made.

Can employers require employees to exhaust their COVID-19 supplemental paid sick leave before satisfying Cal/OSHA’s exclusion pay requirements?

No. If Cal-OSHA COVID-19 Emergency Temporary Standards (ETS) or Cal-OSHA Aerosol Transmissible Diseases Standard (ATDS) requires an employer to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure, employers cannot require an employee to first exhaust CPSL. This is a change from the first two rounds of CPSL leave.

What is the impact of retroactivity?

As mentioned, the leave is available retroactively to January 1, 2022, and will continue through September 30, 2022.

Employees who took leave for a covered reason between January 1, 2022 and the effective date of the law can request retroactive payment.

  • Employees can request retroactive pay by oral or written request. If employees do not request retro pay, there is no obligation to pay it.
  • The retro payment shall be paid on or before the payday for the next full pay period after the request.
  • Employers may require proof of a positive test if the employee seeks retro pay for a positive test for either the employee or a cared-for family member.
  • Employees can make retro requests through September 30, 2022.

For help implementing changes in accordance with the new law, please contact your Baker McKenzie employment lawyer.