On February 9, 2022, Governor Newsom signed California Legislature Senate Bill 114 (SB 114), which reinstates supplemental paid sick leave for qualifying reasons relating to COVID-19.

Employers may recall SB 95, which expired on September 30, 2021, and was substantially similar to SB 114.  Like its predecessor, SB 114 applies to employers with 26 or more employees and provides up to 80 hours of supplemental paid sick leave to full-time employees who are unable to work (including telework) for a reason relating to COVID-19.  While this legislation goes into effect on February 19, 2022, it will retroactively apply back to January 1, 2022 and remain in effect until September 30, 2022.

REASONS FOR LEAVE – TWO PERIODS

Unlike SB 95, SB 114 breaks the total possible 80 hours of COVID-19 Supplemental Paid Sick Leave (CSPL) for full-time employees into two 40-hour periods.

The first 40 hours may be taken for the following qualifying 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 Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace;
• The employee has been advised by a health care provider to isolate or quarantine due to COVID-19;
• The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
  • Notably: For each vaccination or vaccination booster, the 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 employer or family member is continuing to experience symptoms, inclusive of the time used to get the vaccine or 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 to quarantine or isolate due to COVID-19; and/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.

For full-time employees, the second set of 40 hours may be taken if:

• The employee or a family member tests positive for COVID-19. If the employee tests positive, the employer may require the employee to submit to a diagnostic test on or after the fifth day after the positive test was taken and provide documentation of the results.  However, the employer must make the test available at no cost to the employee.  If an employee is caring for a family member and requests this second set of CSPL, the employer may also require that the employee produce the family member’s positive test result.

LEAVE AMOUNTS FOR PART-TIME EMPLOYEES

Part-time employees are entitled to the number of hours of COVID-19 supplemental paid sick leave equivalent to the number of hours the employee normally works in a workweek.  For example, where full-time employees are entitled to two periods of 40 hours, a part-time employee who works 20 hours per week under normal circumstances would be entitled to two periods of 20 hours under each of the two paradigms set forth above.

Employees need not exhaust all hours from the first period of leave before using CSPL from the second period.

RATES OF PAY

CSPL used by an exempt employee shall be paid in the same manner as other forms of paid leave time.  Each hour of leave must be compensated at the employee’s regular rate of pay for the workweek, up to $511 per day and $5,110 in the aggregate.

NOTICE OF REQUEST FOR LEAVE

The employer must make CSPL available immediately upon oral or written notice from the employee.  Thereafter, the employee (not the employer) determines how many hours of CSPL to use.

CSPL IN RELATION TO OTHER TYPES OF LEAVE

The new leave provided under SB 114 is in addition to regular paid sick leave.  An employer cannot require an employee to first exhaust CSPL leave before providing other paid leave such as regular paid leave or vacation time.  If an employee is eligible for exclusion pay under the Cal/OSHA Emergency Temporary Standard, these new CSPL hours cannot be used to offset any exclusion pay obligation.

RECORDKEEPING AND WAGE STATMENTS

For purposes of Labor Code section 246, CSPL must be set forth separately from regular paid sick days listed on an employee’s wage statement.  Via either the wage statement itself or in a separate writing provided on the employee’s pay date, employer must provide an employee with written notice of the amount of CSPL available and the amount of CSPL that the employee has used during the pay period.