On February 9, 2022, Governor Gavin Newsom signed SB-114, effective February 19, 2022, which requires employers to provide workers with up to two weeks (80 hours) of supplemental paid sick leave related to COVID-19.
SB-114 resembles the COVID-19 Supplemental Paid Sick Leave law that expired in September 2021, which we wrote about here, but it contains notable differences. Similar to the 2021 law, SB-114 covers employers with 26 or more employees, applies retroactively to January 1, 2022, and expires on September 30, 2022. As under the former law, employers may cap supplemental paid leave at $511 per day and $5,110 in total for each employee.
Under SB-114, full-time employees qualify for up to 80 hours of supplemental paid leave. The available time is divided into two equal allocations. As explained further below, in order to access one half of the potential leave time, an employee will need to produce a positive COVID-19 test result.
40-Hour Allocation for the Standard Reasons
Half of the potential leave time—up to 40 hours—may be used if employees are unable to work or telework because they are:
- subject to a quarantine or isolation period related to COVID-19 (whether advised by a health care provider or required by order or guidance from local, state, or federal public health authorities);
- experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- attending a COVID-19 vaccination appointment for themselves or a family member,[1] or recovering / caring for a family member recovering from vaccine side effects;
- caring for a family member subject to government quarantine, isolation order, or guidance, or advised by a health care provider to isolate or quarantine; or
- caring for a child[2] whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
Additional 40-Hour Allocation with COVID-19 Positive Tests
Employees may qualify for up to an additional 40 hours of supplemental paid leave if they test positive for COVID-19 or are caring for a family member who tested positive. If employees request time under this positive test provision, an employer may require the employee either (a) to be tested again on or after day five following the initial positive test, or (b) to produce the family member’s positive test, if an employee is caring for a family member. If the employee refuses to test or to provide the test results for themselves or the family member, employers are not required to provide additional COVID-19 paid leave time. (Employees may still be entitled to paid or unpaid time off under other policies and laws.)
Limits on Vaccine-Related Leave
An employee may be generally limited to using three days or 24 hours of supplemental paid leave for each vaccination round or vaccine booster if the employee is:
- attending their own or a family member’s vaccination appointment; or
- experiencing symptoms, or caring for a family member experiencing symptoms, related to vaccination, that prevent the employee from working or teleworking.
Retroactive Application and Payments
SB-114 applies retroactively to time off already taken by employees for covered purposes, beginning on January 1, 2022. Upon an employee’s oral or written request, the employer must pay the employee if the time was unpaid, or permit the employee to swap out previously used vacation, paid time off (PTO), or regular sick time. An employer may then count these hours toward its obligations under SB-114. Employers may require employees to provide documentation of a positive COVID-19 diagnostic test during the relevant period if an employee requests retroactive payment of the COVID-19 supplemental paid sick leave.
If an employer pays another COVID-19 supplemental leave benefit to employees that is payable in the same manner and for the same reasons as those under SB-114 (e.g., voluntarily provided COVID-19 leave, or vaccine leave pursuant to a local ordinance), the employer may count this benefit towards the total number of required hours under SB-114, so long as the benefit is provided separately from an employer’s obligations under California’s paid sick leave law or from other PTO offered by the employer that is not specific to COVID-19.
Other Requirements
Like the 2021 law, SB-114 also has wage statement and notice requirements. However, this law requires employers to add a separate line on employee’s wage statements reflecting the amount of supplemental paid leave used to date (not available as under the previous law). The wage statement requirement is applicable to the first full pay period after the law goes into effect. The Division of Labor Standards Enforcement (DLSE) released a model notice that can be found here.
Employers should also remain aware of their obligations under the California Division of Occupational Safety and Health’s Emergency Temporary Standards (Cal/OSHA ETS), which include required periods of exclusion of employees from the workplace due to COVID-19. Notably, SB-114 mandates that employers may not require employees to exhaust their 2022 COVID-19 supplemental paid sick leave before satisfying any pay continuation obligations under the Cal/OSHA ETS. Employers may also not require employees to first use other paid or unpaid leave, PTO, or employer-provided vacation time before or in lieu of using their 2022 COVID-19 supplemental paid sick leave.
What Employers Should Do Now
- Reinstate COVID-19 supplemental paid sick leave and update policies
- Revise wage statements to display the 2022 COVID-19 supplemental paid sick leave used
- Prepare processes to handle employees’ requests for retroactive pay or an exchange of 2022 COVID-19 supplemental paid sick leave for other types of PTO already used this year
- Post the DLSE’s model workplace notice and disseminate copies to employees working remotely (e.g., via email)
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This Insight was authored by Jennifer L. Nutter, Scarlett L. Freeman, and Vidaur Durazo. For additional information, please contact one of the authors or the Epstein Becker Green attorney who regularly handles your legal matters.
ENDNOTES
[1] Family member means a child, regardless of age or dependency status; the parent of an employee or the employee’s spouse or registered domestic partner; an employee’s spouse or registered domestic partner; a grandparent; a grandchild; or a sibling.
[2] Child means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis, regardless of age or dependency status.
