On February 9, 2022, Governor Gavin Newsom signed SB 114. The law requires covered employers to provide up to 80 hours of COVID-19 Supplemental Paid Sick Leave (“SPSL”) to covered employees who are unable to work or telework due to certain reasons related to COVID-19. SB 114 is similar, but not identical, to California’s previous SPSL law, which expired in September 2021. The key provisions of SB 114 are summarized below.
Effective Date; Covered Employers
SB 114 will become effective on February 19, 2022. However, employees can retroactively request SPSL to cover eligible absences going back to January 1, 2022. SB 114 applies to employers with 26 or more employees.
Amount of SPSL
SB 114 requires covered employers to provide up to 80 hours of SPSL to full-time employees. Part-time employees with a “normal weekly schedule” must be provided with a proportionate amount of SPSL based on the number of hours they are normally scheduled to work per week. SPSL for part-time employees who work “a variable number of hours” is generally calculated using a six-month lookback period, with special calculations for employees who have been employed for shorter periods of time.
Unlike California’s prior SPSL law, SB 114 creates two separate “banks” of SPSL, which employees can use for different purposes.
- The first “bank” of up to 40 hours may used for any of the following reasons:
- The employee is subject to a quarantine or isolation period, or caring for a family member subject to a quarantine or isolation period, pursuant to an order or guidance by a government health agency or based on the advice of a health care provider;
- The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or a vaccine booster;
- The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster (note: the employer may limit leave for this purpose to 3 days/24 hours, unless the employee presents verification from a health care provider that the employee or his/her family member is continuing to experience symptoms related to the vaccine);
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- 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.
- The second “bank” of 40 hours may be used if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19, and the employee cannot work remotely. The second “bank” of SPSL may be used at any time (i.e., employees need not exhaust the first 40 hour “bank” before using SPSL from the second “bank”). SB 114 creates certain documentation obligations for employers and employees related to the second “bank” of SPSL:
- Employers can require employees using SPSL due to their own positive test to submit to a diagnostic test on or after the fifth day after the initial positive test, and to provide the results to the employer. This test must be made available at no cost to the employee.
- Employers can require employees using SPSL to care for a family member who tested positive to submit proof of the family member’s positive test before paying the SPSL.
SB 114 requires employers to make SPSL available for immediate use by a covered employee “upon the oral or written request of the covered employee to the employer.” Employers cannot require employees to first exhaust other forms of paid sick leave before using COVID-related SPSL. Employers also cannot require employees to use SPSL as a substitute for exclusion pay required to be paid under the Cal/OSHA ETS.
Calculating the Rate of Pay
SB 114 requires that SPSL be paid at the same rate of pay as regular paid sick leave (i.e., for non-exempt employees, at the regular rate of pay for the workweek in which the employee takes the leave, or using a 90-day lookback period calculation). SB 114 specifies that employers shall not be required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-related SPSL, unless new legislation is enacted to increase those amounts.