Written by Jeremy Mittman

On February 10, 2022, California Governor Gavin Newsom signed Senate Bill 114 (SB 114), which brings back COVID-19 supplemental paid sick leave, into law. SB 114, which applies to employers with 25 or more employees, will go into effect on February 20, 2022, applies retroactively to January 1, 2022, and will be in effect through September 30, 2022. While the new legislation is similar to California’s previous supplemental paid sick leave law (which we reported on here), SB 114 contains a few notable differences.

Amount of Leave

Like the previous supplemental paid sick leave law, SB 114 provides full-time employees with up to 80 hours of supplemental paid sick leave. While up to 80 hours of leave was previously provided all at once, SB 114 provides leave in two sets of up to 40 hours each.

SET I:

Up to 40 hours of supplemental paid sick leave is provided to employees who are unable to work or telework for the following reasons:

1. Quarantine by Order.  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.
   1. The same applies to an employee who is caring for a family member who is subject to the above.
2. Quarantine by Doctor. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
   1. The same applies to an employee who is caring for a family member who has been advised by a health care provider to isolate or quarantine due to COVID-19.
3. Vaccine Leave. The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or a vaccine booster or is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster.
   1. An employer may limit the amount of provided supplemental paid sick leave to three days or 24 hours in these circumstances, unless the employee provides verification from a health care provider that they or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.
4. COVID-19 Symptoms.  The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
5. Child Care.  The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

SET II:

Below are the main parameters for employers:

1. Up to an additional 40 hours of supplemental paid sick leave is provided if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19.  An employer may require an employee to provide documentation of the employee’s own or family member’s positive test result.
2. Notably, if the employee tested positive, an employer also may require the employee to submit to a diagnostic test (at no cost to the employee) on or after the fifth day after the employee’s first test was taken, and provide documentation of those results. 
3. SB 114 specifically states that an employer has no obligation to provide additional supplemental paid sick leave to an employee who refuses to provide documentation of test results in the scenarios described above.
4. All employees, both full-time and part-time, must make a written or oral request to their employer to use supplemental paid sick leave.
5. Furthermore, employers cannot require employees to use any other paid or unpaid leave, paid time off, or vacation time before using COVID-19 supplemental paid sick leave, or in lieu of COVID-19 supplemental paid sick leave.  However, if an employer has provided COVID-related paid leave at the same (or greater) rate for similar reasons covered by the law (as outlined above) since the beginning of 2022, this may be counted towards the hours the employer is required to provide.

ADDITIONAL CONSIDERATONS:

1. Part Time Employees or Employees with Variable Schedules

Part-time employees with regular weekly schedules are entitled to supplemental paid leave equaling the total number of hours they are normally scheduled to work over a two week period. The supplemental pay that part-time employees with variable schedules are entitled to depends on their length of employment and is spelled out in detail in the law. 

2. Rate of Pay

The method for calculating rate of pay under SB 114 is different than prior legislation.

For nonexempt employees, the rate of pay should be calculated by either:

• 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.
• 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.

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

Similar to previous legislation, SB 114 provides a daily cap of $511, and aggregate cap of $5,110 for supplemental paid sick leave.

3. Interaction with CAL/OSHA Exclusion Pay

A notable difference between SB 114 and prior legislation involves how the supplemental paid sick leave interactions with “exclusion pay” under Cal-OSHA’s Emergency Temporary Standards. While employers were previously permitted to require employees to use their COVID-19 supplemental paid sick leave before collecting exclusion pay, they are no longer able to do so.

4. Other Requirements for Employers

Instead of listing an employees’ available supplemental paid sick leave balance on wage statements, under SB 114 employers need “only” list the amount of paid leave that was used through the applicable pay period, including if the amount is zero hours. These hours should be listed separately from regular paid sick days.

Employers should post a notice regarding COVID-19 supplemental paid sick leave in the Labor Commissioner has made a model notice publicly available for employers to provide to their employees, available here. For covered employers that do not have employees frequenting the workplace, this notice may be disseminated electronically.