Employment Law Alert: New California Law Mandates Additional COVID-19 Supplemental Paid Sick Leave

On February 9, 2022, California Governor Gavin Newsom signed into law Senate Bill 114, which requires employers with 26 or more employees to provide COVID-19 supplemental paid sick leave to employees (in addition to general paid sick leave, and prior COVID-19 supplemental paid sick leave requirements).

Key Dates

The new supplemental paid sick leave requirement takes effect February 19, 2022, but then applies retroactively to leave taken since January 1, 2022, and continues through the new law’s expiration date of September 30, 2022. If an employer did not compensate an employee for leave taken for a qualifying reason before the effective date of the law (but on or after January 1, 2022), the employer must provide retroactive payment upon the oral or written request of the employee.

Qualifying Reasons & Hours Entitlement

 Up to 40 Hours of Paid Leave (Without Positive Test)

The law requires an employer to provide up to 40 hours of supplemental paid sick leave for the following reasons:

(A) 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. If the employee is subject to more than one of the foregoing, the 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 employee has been advised by a health care provider to isolate or quarantine due to COVID-19.

(C) 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, subject to the limitation in clause (ii) of subparagraph (D).

(D) (i) 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.

(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 employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

(F) The 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 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.

An employee is entitled to 40 hours of supplemental paid sick leave if the employee is full-time, or worked or was scheduled to work on average at least 40 hours per week in the two weeks preceding the leave. A part-time employee with a normal weekly schedule is entitled to the number of hours they are normally scheduled to work in a week. The law has more detailed formulas to determine the supplemental paid sick leave hours entitlement for other employees that work variable hours, and firefighters. The law also has special provisions for specified in-home supportive services, and personal waiver care service providers.

Up to 80 Hours (Total) Paid Leave (With Positive Test)

If the employee (or a family member whom the employee is caring for) tests positive for COVID-19, they are entitled to twice the above-referenced amount of supplemental paid sick leave (e.g., 80 total hours for a full-time employee). If an employee tests positive, an 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 those results. The employer must make such a test available at no cost to the employee. As to the additional paid sick leave to care for a family member who tested 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 total maximum amount of COVID-19 supplemental paid sick leave a covered employee is entitled to pursuant to Senate Bill 114 is 80 hours for the period between January 1, 2022, and September 30, 2022 (with an exception for firefighters).

The law permits an employer to limit the supplemental paid sick leave to a maximum of five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate, unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act, in which case the new federal dollar amounts shall apply to this section as of the date the new amounts are applicable under the federal law.

Employees may not be required to use any other form of paid leave prior to using supplemental paid sick leave. Also, an employer may not require an employee to use paid supplemental sick leave prior to receiving paid leave under the Cal-OSHA COVID-19 Emergency Temporary Standards (which require paid leave for COVID-19 cases or exposure, unless the employer can show that the COVID-19 exposure is not work-related).

Mandatory Notices

The law requires an employer to provide written notice on itemized wage statements (i.e., paycheck stubs), or another writing provided with employee paychecks, of the amount of COVID-19 supplemental paid sick leave that the employee has available, and has used through the pay period in which it was due (must list zero hours if the employee has not used any). Employers are also required to display a workplace posting (to be published by the California Labor Commissioner by February 17, 2022) regarding their COVID-19 supplemental paid sick leave rights. If an employer’s employees do not frequent a workplace, the employer may satisfy the posting requirement by disseminating the notice of these rights electronically (e.g., by e-mail).

We recommend that employers work with their legal counsel to update their COVID-19 leave policies and practices in light of this new law. Employers seeking further guidance may contact any of the firm's attorneys.