COVID-19 Supplemental Sick Leave Bill Signed by Governor Newsom

COVID-19 Supplemental Sick Leave Bill Signed by Governor Newsom

It’s official, Supplemental Sick Leave Pay is back in California until September 30, 2022. After being signed by the Governor today, it will become effective in 10 days on February 19, 2022. SB 114 requires California employers with more than 25 employees to provide up to 80 hours of COVID-19 supplemental paid sick leave to employees retroactive to January 1, 2022, until September 30, 2022. This is in addition to the mandated 24 hours of regular paid sick leave already required under California law.

On key difference from last year’s supplemental sick leave is that the 80 hours is split into two separate banks. The first bank provides up to 40 Hours for COVID Qualifying Reasons. These correspond generally with the qualifying reasons that previously applied under SB 95 (last year’s SPSL). Leave must be provided if the employee is unable to work or telework for any 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, 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 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 vaccine or a vaccine booster for protection against COVID-19.
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.
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.

The second bank provides an additional 40 Hours for Positive COVID-19 Tests. Specifically, The second category of SPSL entitles an employee to the same amount of leave they qualified for under the first category (up to 40 hours) if the employee tests positive for COVID-19, or a family member for whom the employee is providing care tests positive for COVID-19.

SB 114 authorizes the employer to require proof of a positive test in such situations.

First, 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. SB 114 specifically states that the employer shall make such a test available at no cost to the employee.
Second, 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.

Another important difference of SB114 compared to last year’s bill is the rate of pay. Per last year’s SPSL, employers had to utilize the rate of pay that was the highest under several different calculations. SB114 instead defines regular rate of pay more in line with the methodology under regular paid sick leave, which allows employers to choose among a number of methods.

For nonexempt employees, the regular rate of pay is determined 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; 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 legislation caps the amount of leave required to be paid at $511 per day and $5,110 in the aggregate.

Goyette, Ruano & Thompson has decades of experience in labor and employment law. The situation at hand is rapidly evolving, so please check back for updates and additional or subsequent posts regarding COVID-19 Supplemental Sick Leave, and how it will impact you & your workplace. If you have any questions or comments, or are in need of representation, please contact Goyette, Ruano & Thompson at [email protected] or at (916) 851-1900.