Publications

New COVID-19 Supplemental Sick Leave

by Jennifer Shaw and Erika Frank | The Daily Recorder | April 4, 2022

On February 9, 2022, Governor Newsom signed SB 114, creating 2022’s version of COVID-19 Supplemental Paid Sick Leave.  The new law took effect on February 19, 2022, is retroactive to January 1, 2022, and expires on September 30, 2022.

In addition to understanding the text of SB 114, employers should carefully review the related FAQs available on the California Division of Labor Standards Enforcement’s website.

Covered Employers

Private and public employers with 26 or more employees in any location must provide COVID-19 Sick Leave to employees who are unable to work or telework for the reasons listed below.

Amount of Leave

The amount of leave is based on the number of hours an employee works, up to a maximum of 80 hours. “Full-time” employees as defined by the employer (which may not require a 40-hour per week schedule) receive 80 hours. For employees working a set schedule, the amount of leave is based on the weekly schedule. Varied schedule employees may receive an amount equaling seven times the average number of hours the employee worked each day in the six months before the first day of leave (or for the duration of employment, if hired more recently).

Rate of Pay

Exempt employees are paid as they are for other paid leave. The rate of pay for non-exempt employees is more complicated. One option is to pay COVID-19 Sick Leave at the employee’s “regular rate of pay” (i.e., the same rate used to calculate overtime). The other option is to divide the employee’s total wages (less overtime) by their total non-overtime hours worked in the full pay periods during the prior 90 days of employment. If employees are paid by piece rate, commission, or some other method that uses all hours worked to calculate the regular rate of pay, an employer may divide the total hours worked.

Pay for COVID-19 Sick Leave is capped at $511 per day and $5,110 in total. Employees who earn more than $511 per day may use other forms of accrued leave to reach 100% of their regular pay.  In addition, employees may be eligible for State Disability Insurance or workers’ compensation benefits depending on the circumstances.

Two Categories of Leave

SB 114 establishes two separate and distinct leave categories for the same amount.  For example, if an employee is entitled to 80 hours of VODI-19 Sick Leave, then they have 40 hours in each category.

An employer may not dictate which category an employee may use, or require an employee to exhaust one category before using the other.  They also may not require employees to use COVID-19 Sick Leave if they are eligible for exclusion pay under Cal/OSHA’s Emergency Temporary Standards.

The first category applies in the following circumstances: (1) an employee or a family member for whom they provide care is subject to a COVID-19 quarantine or isolation period, 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, or is advised by a health care provider to isolate or quarantine due to COVID-19  (“family member” includes children, parents, spouses, registered domestic partners, grandparents, grandchildren, and siblings for whom the employee is caring for); (2) the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (3) the employee is caring for a child whose school or place of care is unavailable because of COVID-19 on the premises; and (4) the employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccination or booster, or experiencing vaccine or booster related symptoms.  An employer may initially limit vaccine-related leave to 24 hours or three days, and require medical documentation for additional days.

The second category is available only when an employee or a family member tests positive for COVID-19.  An employer may request “proof” of a positive test, and deny COVID-19 Sick Leave if an employee refuses.

If an employee requests additional time beyond that available in the second category, then the employer may require the employee to test for COVID-19 on or after the 5th day from the initial positive test. The Labor Commissioner has clarified that a rapid (Antigen) home test is complaint. An employer may deny additional COVID-19 Sick Leave if an employee refuses to retest, or tests negative.

Documentation of test results is medical information, and must kept confidential.

Retroactive Pay and Credits

An employee may request retroactive payment for missed work between January 1, 2022, and February 19, 2022, due to SB 114 qualifying reasons. Payments are due on or before the next pay period. If an employee used paid leave for the time off (such as regular sick leave or vacation), the employer must restore that leave.

Wage Statement and Poster

Employers must include on employee wage statements (or in a separate document sent to employees at the same time) the amount of COVID-19 Sick Leave the employee has used to date.  This requirement differs from the 2021 version of COVID-19 Sick Leave, which required employers to provide the amount of time off available.

Employers also must display a poster distributed by the DLSE.  Remote employees may receive the poster electronically.

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