A New Variant of California COVID-19 Supplemental Paid Sick Leave Law Emerges — What Employers Need to Know
On February 9, 2022, Governor Newsom signed Senate Bill No. 114, California’s 2022 COVID-19 supplemental paid sick leave law. Under the new law, employers with 26 or more employees are obligated to provide up to 80 hours of supplemental paid sick leave for qualifying COVID-19 related reasons (“2022 SPSL”). Although an employer’s obligation to provide 2022 SPSL does not begin until February 19, 2022 (ten days after the bill was signed), benefits available to employees are retroactive to January 1, 2022. The law is set to expire on September 30, 2022, as discussed in more detail below.
The 2022 SPSL law is similar to last year’s COVID-19 supplemental paid sick leave law, which expired on September 30, 2021 (Senate Bill 95, discussed here), with some significant differences. As a result, employers will not be able to simply reinstate policies that they had in place to comply with their 2021 COVID-19 supplemental paid sick leave obligations. One significant, unwelcomed difference is that employers’ obligations to provide paid sick leave under the 2022 law are in addition to their obligations under Cal-OSHA COVID-19 Emergency Temporary Standards (“ETS”) to pay employees who are excluded from the workplace due to COVID-19 exposure.
Below is additional information on the provisions of the 2022 SPSL law that apply to employers generally. This article does not discuss provisions of the 2022 SPSL law that are applicable to firefighters or providers of in-home supportive and/or waiver personal care services.
Covered employers and employees
Covered employers are employers in the state of California with 26 or more employees. All employees who are unable to work or telework due to a qualifying COVID-19-related reason, regardless of full or part-time status, are eligible for 2022 SPSL (however, the amount of leave provided is different for full-time and part-time employees, as discussed below). In addition, the 2022 SPSL law allows employees to use leave to care for family members, defined to include a child, grandchild, grandparent, parent, sibling, domestic partner, or spouse.
The 2022 SPSL law provides up to 80 hours of SPSL due to a qualifying COVID-19-related reason. It provides paid leave in two batches—one batch permitting up to 40 hours when an employee tests positive for COVID-19, and a second batch permitting up to 40 hours for other COVID qualifying reasons.
#1 – Positive COVID-19 Test
Leave hours from one 40-hour bank will be available only if the employee tests positive for, or is caring for a family member who tests positive for, COVID-19. The 2022 SPSL law specifically authorizes the employer to require proof of a positive COVID-19 test.
#2 - COVID Qualifying Reasons
Leave hours from the second 40-hour bank will be available for other covered reasons. Leave must be provided if the employee is unable to work or telework for any of 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 healthcare 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. There are specific limits on the amount of SPSL that an employee may use for this purpose. Generally, an employer may limit the amount of time to 3 days or 24 hours absent a verification from a health provider.
- The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent 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 described above or who has been advised to isolate or quarantine, as described above.
- 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.
Amount of Leave
The maximum potential amount of 2022 SPSL an employee can receive is 80 hours for full-time employees. For part-time employees, the amount is proportionate to the number of hours they work. Below is information regarding how to calculate the amount of leave available to employees.
- Full-time employees, those who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee takes 2022 SPSL, and those considered full-time by the employer even if working fewer than 40 hours per week, are entitled to 40 hours of 2022 SPSL for each leave bank.
- Part-time employees with fixed weekly schedules are entitled to the total number of hours normally scheduled for one week, not to exceed 40 hours for each leave bank.
- Part-time employees on variable schedules are entitled to seven times the average number of hours worked each day in the six months preceding the date the employee takes 2022 SPSL, not to exceed 40 hours. If the employee has worked for the employer for less than six months, the total length of their employment is used, unless the employee has been employed for seven days or less. In that case, the total number of hours worked is used. Again, this calculation is for each leave bank.
Rate of Pay
The 2022 SPSL requires that employers pay non-exempt employees by either:
- using the same manner as the regular rate of pay for the workweek in which the employee uses 2022 SPSL, whether or not the employee actually works overtime in that workweek; or
- dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within 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, must be divided by all hours to determine the correct amount of 2022 SPSL.
2022 SPSL for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
There is a cap to 2022 SPSL of $511 per day and $5,110 in total 2022 SPSL, but if there is a gap between this amount and their pay rate, employees may use other available leave time to bridge the gap.
Interaction with Other Leaves and Cal/OSHA Exclusion Pay
Like the 2021 law, paid leave pursuant the 2022 SPSL law is in addition to any “regular” paid sick leave required under California’s Healthy Workplaces, Healthy Families Act (California’s pre-COVID-19 paid sick leave law) or local ordinances.
Cal/OSHA’s ETS requires that employers provide employees who are excluded from work due to a workplace COVID-19 exposure with exclusion pay under certain circumstances. (See General Industry Safety Order Section 3205(c)(9)(A)-(D) for discussion of exclusion and exclusion pay requirements, which are still in effect). Previously, employers were permitted to require that employees use their SPSL before collecting exclusion pay. However, employers are prohibited from requiring the exhaustion of 2022 SPSL before the collection of exclusion pay.
Retroactive Requirements and Expiration Date
The 2022 SPSL law is retroactive to January 1, 2022. If an employee took leave dating back to the first of the year for one of the qualifying reasons that was either unpaid or not paid at the same level required by the new law, the employee may make a request for retroactive payments. The 2022 SPSL law will be in effect through September 30, 2022. However, an employee taking leave as of that date shall be permitted to take their full amount of leave.
Posting and Wage Statement Requirements
The 2022 SPSL law requires the Labor Commissioner to develop a model notice within seven days of the enactment of the new law, which should be on February 16, 2022. The Department of Industrial Relations web page regarding COVID-19 acknowledges that they are “updating webpages to provide full details on the new 2022 COVID-19 Supplemental Paid Sick Leave law” and instructs employers to “check back for updates, including FAQs and workplace postings.” In addition, it provides that if employees do not frequent a workplace, the employer may provide the notice through electronic means, such as by e-mail.
With respect to wage statements, the new 2022 SPSL law requires employers to list the amount of 2022 SPSL the employee has used through the applicable pay period. This is different from last year’s SPSL law, which required employers to list the amount of SPSL hours available to employees.