California once again launches paid sick leave for employees who request leave due to COVID -19 ("COVID SPSL"). The law (SB 114) will take effect from February 19 to September 30, 2022, and will apply retroactively to January 1, 2022.
Note: This update only covers California’s state-wide COVID-19 Supplemental Paid Sick Leave. Employers should check for any other applicable local ordinances or regulations.
Which Employers are Covered?
All employers with more than 25 employees. Employer as defined under California Labor Code section 245.5(b).
Which Employees are Covered?
This new law applies to any employee “who is unable to work or telework” for any of the specified qualifying reasons below. It is immediately available to any eligible employee, whether they work remotely from home or work in the employer’s place of business, regardless how long they have worked for the employer.
Employers must provide the leave to the employee (upon oral or written request) for any of seven specified reasons:
Advised to Isolate by Government: The covered employee is subject to a quarantine or isolation period related to COVID-19 by governmental agencies.
Advised to Isolate by Doctor: The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
Attending Vaccination Appointment: The covered employee is attending an appointment for themselves or for a family member (as defined by Labor Code section 245.5) to receive a vaccine or a vaccine booster for protection against contracting COVID-19.
Experiencing Symptoms: The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework. Note: For each vaccination or booster, an employer may limit the total COVID-19 SPSL to 24 hours of leave 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 booster. This 24-hour leave period includes both the time used to get the vaccine or booster and time experiencing symptoms from the vaccine.
Seeking a Medical Diagnosis: The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Caring for Family Member: The covered employee is caring for a family member who is subject to an order or guidelines described in subparagraph (A) above or who has been advised to quarantine, as described in subparagraph (B).
Caring for a Child: The covered 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.
Amount of Leave Provided?
The new law provides one week of SPSL to all covered employees and "a second week" to employees who test positive for COVID-19 or provide care for a family member who tests positive. The specific amount of leave depends on whether the employee is full-time or part-time:
Covered employees are entitled to 40 hours of COVID-19 SPSL if (a) the employer considers the covered employee to work “full time,” or (b) the covered employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the worker took COVID-19 SPSL.
Other part-time employees are entitled to differing amounts of COVID-19 SPSL depending on the type of schedules they work and/or their length of service with the employer:
Covered employees with a normal weekly schedule are entitled to the total number of hours the covered worker is normally scheduled to work for the employer over a one-week period.
Employees with variable schedules are entitled to 7 times the average number of hours the employee worked each day for the employer in the six months preceding the date the worker took COVID-19 SPSL.
For employees with variable schedules who have worked less than six months but more than 7 days, this calculation is made over the entire period the employee has worked for the employer.
If the employee works a variable number of hours and has worked for the employer for 7 or fewer days, the employee will be entitled to the total number of hours worked for the employer.
In addition, covered employees are entitled to additional COVID-19 SPSL in an amount not to exceed the amount discussed above if the covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.
An employer may require documentation of the positive test result before providing this additional leave; and an employer may require the employee to submit to a second diagnostic test five days after the employee’s first positive test at no cost to the employee.
The total maximum amount of COVID-19 SPSL for each covered employee shall not exceed 80 hours for the period between January 1, 2022 and September 30, 2022.
The employee does not need to exhaust the initial, generally applicable COVID-19 SPSL to which they are entitled before using additional leave provided in connection with positive test.
How Much are Employees Paid Under the COVID-19 SPSL?
No more than $511 per day and $5,110 total for each employee.
Nonexempt employees: employer shall pay the SPSL at one of the following two rates:
Calculated in the same manner as the regular rate of pay for the workweek in which the covered employee uses COVID-19 SPSL, regardless of whether the employee worked overtime in that workweek, or
Calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s non-overtime hours worked in the full pay periods of the prior 90 days of employment, provided that for nonexempt employees paid by piece rate, commission, or another 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.
Exempt employees: employer shall calculate the SPSL pay rate in the same manner as the employer calculates wages for other forms of paid leave time.
Notice must be posted in the workplace or through electronic means, including email, for employees who do not frequent the workplace.
Employers also must provide notice of the amount of COVID-19 SPSL an employee has used within the employee’s wage statement or a separate writing each pay period and must set forth COVID19 SPSL separately from other paid sick days.
The employer shall list zero hours used if an employee has not used any COVID-19 SPSL. This requirement will be enforceable after February 19, 2022.
If an employee took time off for a qualifying reason after January 1, 2022, and the employer did not compensate the employee in an amount at least equal to the amount required under this new law, then the employer must make a retroactive payment upon the employee’s oral or written request, provided that the employer may require documentation of a positive test if the employee requests retroactive payment of the additional COVID-19 SPSL available when an employee or family member tests positive.
Any retroactive payment must be made on or before the payday for the next full pay period after the employee’s oral or written request and must be reflected on the itemized wage statement or other statement reflecting the amount of COVID-19 SPSL used.
Richard Liu, Esq. is the Managing Counsel of ILS. He serves clients as a management-side defense lawyer specializing in employment and business litigation. Richard is also an expert on litigation prevention and compliance. He regularly advises Fortune 500 companies and startups on employment, labor, and commercial matters.
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*Disclaimer: This article does not constitute legal opinion and does not create any attorney-client relationship.