On February 9, 2022, Governor Newsom signed a new law requiring employers to provide supplemental COVID-19 paid sick leave in 2022. The law, SB 114, was passed quickly by the legislature and signed by the Governor. Unlike the supplemental paid sick leave law passed in 2021, there are no offsetting tax credits for employers to assist with the added costs this new paid sick leave will place on businesses across the state. Here are five key issues California employers should know about the new law and its related deadlines:
1. The new COVID-19 supplemental paid sick leave law takes effect on February 19, 2022.
The Governor signed the law on February 9, 2022, and therefore the paid sick leave requirement takes effect 10 days after the enactment of the law – February 19, 2022. The law applies retroactive obligation for employers to pay for qualifying paid sick leave starting January 1, 2022. The paid sick leave requirement expires on September 30, 2022 (but employees currently using the sick leave can continue its use past the September 30th deadline).
2. Which employers would be covered by the law?
The law applies to employers with more than 25 employees.
3. Which employees are entitled to paid sick leave?
Employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to 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 health care 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, subject to certain limitations.
- The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents 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 or who has been advised to isolate or quarantine.
- The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
- If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)
4. How much paid leave is required?
The employee is eligible for potentially up to 80 hours of leave available under two different banks:
- Bank #1: Employees are entitled up to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.
- Bank #2: Employees are entitled up to 40 hours of paid leave for reason number 8 listed above (if they or a family member test positive).
Employers will therefore have to implement internal tracking measures to track the reason for the leave and how much of the leave the employee has taken under each of the two banks of leave available. It is expected that there will be many questions regarding how employers are to account for the various reasons for leave under the two different banks of leave. Employers will need to consult legal counsel on this and closely monitor any updates from the Labor Commissioner.
Calculating Amount of Leave Available
The law sets forth how employers are to calculate the amount of leave for part-time, variable scheduled employees, and full-time employees. Employers will need to review the requirements in order to make the appropriate calculations for these different classes of employees.
Calculating Rate of Pay
The law sets forth how employers are to calculate the rate of pay for nonexempt employees, and exempt employees. Employers will need to carefully review these calculations to ensure the proper rate of pay is being used when an employee takes qualifying paid leave.
Caps on Payments
However, the total paid sick leave is capped at 80 hours for the period between January 1, 2022 to September 30, 2022. In addition, employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee (unless federal legislation changes these amounts set forth in the FFCRA).
Interaction with California’s Healthy Workplaces, Healthy Families Act and Cal/OSHA ETS Exclusion Pay, and Local Ordinances
The supplemental paid sick leave is in addition to the paid sick leave employees are entitled to under California’s Healthy Workplaces, Healthy Families Act set forth in Labor Code 246. Moreover, employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS). The new California supplemental paid sick leave leaves in place any employer obligation to comply with local paid sick leave requirements, such as those in Los Angeles City and County, Long Beach, and Oakland.
5. Notice and pay stub requirements.
The law requires employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid. This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day. The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave. This requirement takes effect the next full pay period following February 19, 2022.
Employers are also required to post or distribute a notice to employees that will be developed by the Labor Commissioner. The Labor Commissioner is in the process of updating its website, and will make the posters and FAQs available here.
Other provisions of the law also address firefighters and providers of in-home supportive services employees.