Feb. 9, 2022 New California 2022 Supplemental Paid Sick Leave Law Takes Effect Immediately

A few moments ago, Governor Newsom signed Senate Bill 114 (SB 114), which requires California employers with more than 25 employees to provide employees with a brand new bank of supplemental paid sick leave for COVID-related reasons (SPSL), including to employees seeking vaccination appointments or recovering from vaccination side-effects.  The law requires employers to provide the SPSL to employees retroactively back to January 1, 2022.

Although the new law is similar in some respects to California’s 2021 SPSL law, there are a number of significant differences that will affect implementation.

The new SPSL law goes into effect immediately, with the requirement to provide SPSL beginning on February 19, 2022, so employers have little time to provide employees with notice of their rights under the law, ensure compliant policies and practices, and work with their payroll providers to ensure that their paystubs include the necessary new information.

On a separate note, California’s near-universal indoor mask mandate will expire on February 15, 2022.  The California Department of Public Health (CDPH) has issued new guidance that will apply beginning February 16, 2022.  The new guidance continues to require face coverings in a number of settings as well as for unvaccinated individuals in indoor public settings and businesses. 

Media coverage of the expiration of the indoor mask mandate is likely to create some confusion among employees about face coverings in the workplace.  California employers remain subject to Cal/OSHA’s emergency temporary standards (ETS), which continue to mandate face coverings in a number of situations.  More information can be found in Cal/OSHA’s ETS FAQs.

What does SB 114 require?

SB 114, which adds sections 248.6 and 248.7 to the California Labor Code, requires employers with more than 25 employees to provide SPSL for COVID-related reasons (listed below).  This entitlement is over and above employees’ regular paid sick leave, PTO, or vacation leave banks. 

In contrast to the 2021 law, the 2022 SPSL entitlement is in addition to the employee’s right to Cal/OSHA exclusion pay – that is, if Cal/OSHA exclusion pay applies, employees cannot be required to use their SPSL entitlement. (Cal/OSHA exclusion pay applies when an employee cannot work due to work-related exposure or illness.)

SPSL must be available for immediate use by the employee, upon oral or written request.  An employee may determine how many hours of SPSL to use, up to the total number of hours to which the employee is entitled.  

The obligation to provide SPSL is retroactive to January 1, 2022. 

What can SPSL be used for?

Employees may use SPSL if they are unable to work or telework for any of the following reasons:

  1. the employee is under a COVID-19 quarantine or isolation period based on a governmental order or guidelines;
  2. the employee has been advised by a health care provider to isolate or quarantine due to COVID-19;
  3. the employee is attending an appointment for themselves or a family member for a COVID-19 vaccine or booster*;
  4. the employee is experiencing COVID-19 vaccine side effects or is caring for a family member who is experiencing side effects that prevent the employee from being able to work or telework*;
  5. the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  6. the employee is caring for a family member who is subject to an order or guidelines described in subparagraph (1) or who has been advised to self-quarantine, as described in subparagraph (2);
  7. 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 each vaccination or booster shot, the employee is limited to three days or 24 hours of SPSL unless the employee provides certification from a health care provider that the employee or family member is continuing to experience symptoms related to the vaccination or booster.

How much leave are employees entitled to?

Full-time employees, or employees who worked or were scheduled to work on average at least 40 hours per week in the two weeks preceding the need for SPSL leave, are entitled to up to 80 hours of SPSL.  Part-time employees who have a normal weekly schedule are entitled to SPSL based on the total number of hours the employee is normally scheduled to work over two weeks.  Variable hour employees are entitled to SPSL based on an average hours calculation defined in the new law.

However, unlike the 2021 law, the amount of leave an employee may be entitled to is divided into two buckets: (1) up to 40 hours for any of the uses listed above; and (2) up to an additional 40 hours of leave if the employee or the employee’s family member who the employee is providing care to, tests positive for COVID-19.

Employers may not require documentation for use of SPSL in the first bucket.  However, employers may require proof of a positive test for use of SPSL in the second bucket.  In addition, the employer may require that the employee be tested again, at no cost to the employee, on or after the fifth day after the positive test. 

As noted above, employers may not require the employee to use any other paid or unpaid leave, paid time off, or vacation time provided before the employee uses SPSL or in lieu of SPSL.

How will employees know about SPSL and how much leave they have available?

Employers must provide employees with notice of their rights under the SPSL law.  The California Labor Commissioner is required to publish a model notice within seven days.  Notices must be posted in the workplace and must also be delivered electronically to employees who are working remotely or who otherwise do not frequent the workplace.

In addition to providing the employee’s available balance of SPSL on the wage statement, the 2022 SPSL law also requires employers to provide the amount of used SPSL to be listed on the employee’s wage statement or a separate writing provided with the employee’s pay.  The 2022 law provides “the employer shall list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.” 

The law provides only a very short grace period on implementing the pay stub requirement: employers have until the next full pay period after the effective date of the new law.

How much are employees paid for SPSL?

As is the case with regular California paid sick leave, nonexempt employees must be paid SPSL at the employee’s “regular rate of pay” (a term of art that includes all forms of remuneration the employee receives such as shift differentials and non-discretionary bonuses) or via a calculation made by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment. 

Exempt employees’ SPSL should be paid in the same manner as the employer calculates wages for other forms of paid leave time.

However, employers are not required to pay more than $511 per day or $5,110 in the aggregate to an employee for SPSL.

What is the practical effect of the law’s retroactivity?

As noted above, SB 114 applies retroactively to January 1, 2022.  This presents a significant practical challenge (and cost) for employers. 

For any time an employee took off between January 1, 2022 and February 19, 2022 for a qualifying reason under the new law (see above):

  • unless the employee has already received compensation in an amount equal to or greater than the amount of compensation required by the SPSL law, then upon the oral or written request of the employee, the employer must provide the employee with a retroactive payment that provides for such compensation;
  • this retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request of the employee; and
  • the retroactive payment must be reflected on the employee’s wage statement as retroactive SPSL pay.

If the employee used “regular” paid sick leave, PTO, vacation leave, or unpaid leave after January 1, 2022 for a reason that qualifies under the SPSL law, employees are entitled to request that their leave banks be credited and replenished for any such time previously debited.  Employers should have internal processes/forms ready to process such requests. 

When does the new SPSL leave expire?

This new law is in effect through September 30, 2022, except that an employee taking SPSL at the time of the expiration must be permitted to take the full amount of SPSL to which the employee otherwise would have been entitled to under the new law.  For example, if an employee starts SPSL on September 30, 2022, she may continue it into October to complete her leave.

Anything else I should know about the new SPSL law?

The new SPSL law incorporates many of the provisions of California’s regular paid sick leave laws.  For example, the recordkeeping, wage statement, pay calculation, and anti-interference/discrimination/retaliation provisions all apply to SPSL.

In addition, because SPSL is codified in the Labor Code, violations of the SPSL law may be the basis for a Private Attorneys General Act of 2004 (PAGA) representative action.

These laws are complex and this E-Update provides only a brief overview of the major changes.  For further information, questions, or assistance, please contact us.  PPSC has a dedicated COVID-19 response team and is committed to assisting our valued clients through these challenging and fast-changing times.

AUTHOR

CamiLle
Gustafson