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By Rachel H. Khedouri, Esq. and Stacy L. Fode, Esq.

On February 9, 2022, Governor Newsom signed Senate Bill 114 bringing back COVID-19 supplemental paid sick leave (“SPSL”) to California employees. As California employers will recall, the prior iteration of SPSL – which expired on September 20, 2021 — required companies to provide 80 hours of sick leave for absences related to COVID-19; the new law is similar to the 2021 SPSL but not identical.

Although the new law is effective February 19, 2022, it applies retroactively to require employers to provide SPSL for leaves taken for covered reasons between January 1, 2022 and September 30, 2022.

Here are answers to the key questions California employers are asking regarding the new SPSL:

WHO is covered? All employers with more than 25 employees must provide SPSL to their California employees – regardless of length of service — who are unable to work or telework for a covered reason (see “WHY can SPSL be taken” below). In determining whether they meet the 25-headcount threshold, companies must count all employees nationwide. Separate provisions not discussed here apply to firefighters and providers of in-home supportive services or waiver care services.

WHY can SPSL be taken? The leave is available where the employee is unable to work or telework because:

  1. The covered 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.
  2. The covered employee has been advised by a health care provider to quarantine or isolate due to COVID-19.
  3. The covered employee is attending an appointment for themselves or a family member (defined as child, parent, sibling, grandchild, grandparent or spouse/registered domestic partner of the employee) to receive a vaccine or a vaccine booster for protection against COVID-19.
  4. The covered 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.
  5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The covered employee is caring for a family member who is subject to an order or guidance or who has been advised to quarantine or isolate.
  7. The covered 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.

HOW much leave must be providedFull-time employees are entitled to up to 40 hours of SPSL when they are unable to work for one of the above reasons; part-time employees may take a proportionate number of hours based on their regular schedule. Employees may take up to an additional 40 hours (or part-time equivalent) if they or the family member they are caring for tests positive for COVID-19. Employers may require proof of the positive COVID-19 test results of the employee’s family member before paying the additional leave. For employees seeking additional leave because they tested positive, the employer may require the employee to submit to a diagnostic test taken on or after the fifth day following the original test; the company must provide the second test at no cost to the employee. Employers may deny additional leave if the employee refuses to provide documentation.

For leave taken related to receipt of a vaccine or booster, employers may limit the total SPSL for both obtaining the vaccine or booster and recovering from symptoms (covered reasons 3 and 4 above) to a total of three days or 24 hours unless the employee provides verification from a health care provider that the employee or their family member is continuing to experience symptoms. Each employee may take a maximum of 80 hours of SPSL in total.

HOW will SPSL be paid? SPSL is provided over and above any existing sick leave or PTO policy and employers may not require employees to use other paid or unpaid leave before or in lieu of SPSL. For exempt employees, payment for SPSL should be calculated in the same manner as other forms of paid leave time. For non-exempt employees, companies can choose to calculate SPLS payments either (1) in the same manner as the regular rate of pay for the workweek in which the employee uses SPLS or (2) by dividing the total wages (excluding overtime pay) by total non-overtime hours worked in the full pay periods occurring within the prior 90 days worked. SPLS payments max out at $511 per day and $5,110 in total to a covered employee, unless otherwise required by federal law. Employees who exceed the pay cap may use other available paid leave to make up the difference. At this time, there is no direct tax or financial relief for employers providing SPSL.

WHAT notice must the employer provide? The legislation requires the Labor Commissioner to publish a model notice by February 16, 2022; employers must post the notice in all workplaces and may email or post it electronically where employees do not regularly report to a physical workplace. Commencing with the next full pay period after February 19, 2022, employers must list SPSL separately from regular paid sick leave on each employee’s itemized pay stub with a tally of how many SPSL hours the employee has taken (listing zero if the employee has taken none); alternatively, the company can provide this information in a separate writing on pay days. Employers should also be mindful that obligations under CAL-OSHA’s COVID-19 Emergency Temporary Standards and local supplemental paid sick or vaccine leave ordinances (for example, in Long Beach, Los Angeles [City and County] and Oakland) continue to be in effect and may provide additional paid leave entitlements for employees.

NFC’s COVID-19 Response Team will continue to keep you apprised of developments relating to COVID-19, including paid leave obligations. If you have any questions relating to establishing your SPSL policy or would like guidance relating to any other COVID-19 issue, please feel free to reach out to Stacy L. Fode at 619.292.0545.


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