California Reinstates COVID-19 Supplemental Paid Sick Leave

February 15, 2022

On Feb. 9, 2022, California Gov. Gavin Newsom signed into law Senate Bill 114, granting covered employees up to 80 hours of paid sick leave for COVID-19-related reasons (CSPSL).

Effective Dates of Application. The new law took effect immediately upon signing, and certain aspects of the law apply retroactively to Jan. 1, 2022. The law expires on Sept. 30, 2022. However, an employer’s obligation to provide CSPSL does not begin until Feb. 19, 2022.

Covered Employers. The law applies only to employers with 26 or more full-time or part-time employees.

Amount of Leave Provided. The law provides full time employees with a total of up to 80 hours of CSPSL, subject to certain limitations (see below). “Full-time” employees include those the employer “considers” to be full time, along with employees who work or were scheduled to work an average of 40 hours per week in the two weeks preceding the date CSPSL is taken.

Employees who do not work full time (i.e., part-time employees) receive a reduced amount of CSPSL as follows: Those with set weekly schedules are entitled to the total number of hours normally scheduled for one week. Those on a variable weekly schedule receive seven times the average number of hours worked each day in the six months preceding the date the employee takes CSPSL. If the individual was employed less than six months, the employer should use the total length of employment to calculate CSPSL for part-time workers on a variable schedule.

Categories of Leave. While the law grants 80 total hours of CSPSL, it splits the amount of CSPSL an employee can take into two separate categories, with each category allowing up to 40 hours of CSPSL for different purposes.

Category 1: 40 Hours for Qualifying COVID-19-Related Reasons. Category 1 allows up to 40 hours of CSPSL for eligible employees who are unable to work or telework due to any of the following COVID-19-related reasons:

  • The employee is subject to a COVID-19 quarantine or isolation period pursuant to the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer with jurisdiction over the workplace.
  • A healthcare provider has advised the employee to isolate or quarantine due to COVID-19.
  • The employee is attending an appointment for the employee or a family member to receive a COVID-19 vaccine or a booster.
  • The employee is experiencing COVID-19 vaccine symptoms or caring for a family member experiencing COVID-19 vaccine symptoms that prevent the employee from being able to work or telework.
  • The employee is experiencing COVID-19 symptoms 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.

Employers may limit CSPSL to three days (or 24 hours) for the vaccine-related reasons listed above unless the employee provides medical certification that the employee requires additional time beyond the three days (or 24 hours).

Category 2: Additional 40 Hours if Employee or Family Member Tests Positive for COVID-19. Category 2 allows an additional 40 hours of CSPSL if an employee tests positive or if a family member (children, parents, spouses, registered domestic partners, grandparents, grandchildren and siblings) for whom the employee is providing care tests positive.

Employers may require proof of a positive COVID-19 test from the employee in either of the below circumstances:

  • If the employee tested positive, the employer can require the employee to submit to a diagnostic test — at no cost to the employee — on or after the fifth day after the initial test was taken and require proof of those results.
  • If the employee requests additional CSPSL because a family member for whom the employee is providing care tests positive for COVID-19, the employer may require proof of that family member’s test results before paying additional CSPSL.

To the extent the employee fails to provide documentation in either of these circumstances, the employer has no obligation to provide CSPSL.

Calculating Rate of Pay. The law provides that the pay rate calculation for CSPSL aligns with the pay rate calculations under California’s Healthy Workplaces, Healthy Families Act. Thus, the law permits employers to pay non-exempt employees by either one of the following:

  • Using the same regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.
  • Dividing the employee’s total wages, excluding 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. For non-exempt 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 proper amount of CSPSL.

For exempt employees, CSPSL is calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Notwithstanding the above, the total amount required to be paid is $511 per day and/or $5,110 in the aggregate. After exhausting all CSPSL, employees may use other available paid leave.

Retroactive Payments for CSPSL. The law is retroactive to Jan. 1, 2022. Accordingly, if an employee took leave for any qualifying COVID-19-related reason on or after Jan. 1, 2022, and was not paid by the employer (or in the amount required by Senate Bill 114), the employee may request retroactive payment for CSPSL. Employers must make retroactive payments on or before the payday for the next full pay period after the request is made.

Other Supplemental Paid Leave That Counts Toward CSPSL. CSPSL must be provided in addition to any other paid leave. Employers cannot require employees to use any other paid or unpaid leave, paid time off or vacation time prior to using CSPSL and/or in lieu of CSPSL.

However, for employers who provide supplemental benefits and/or paid leave for any time off between Jan. 1, 2022, and the present, the employer may count those hours toward the allotted CSPSL amount if the employee took the supplemental benefits and/or paid leave for any of the qualifying COVID-19 reasons set forth above and the payment of those hours is equal to or greater than that required under Senate Bill 114.

Notice, Posting and Pay-Stub Requirements. By Feb. 16, 2022, the labor commissioner must provide a model CSPSL notice, which employers must then post in their workplaces. To the extent employees do not frequent the workplace and/or work remotely, employers may satisfy this notice requirement electronically, including by email.

The law also requires employers to provide information regarding the amount of CSPSL available to employees via their pay stubs or by written notice, which employees must receive on their payday. Specifically, the pay stub or written notice must state all of the following:

  1. Amount of CSPSL available (separate and apart from paid sick leave).
  2. Amount of CSPSL the employee has used through the applicable pay period in which it was due to be paid, including if the employee did not use any CSPSL during the pay period.
  3. If the employee did not use any CSPSL, the employer must list zero hours used.

CAL/OSHA Exclusion Pay. The new law prohibits employers from requiring employees who are excluded from the workplace for COVID-19-related reasons under any of the Division of Occupational Safety and Health’s COVID-19 Emergency Temporary Standards to first exhaust their CSPSL prior to collecting exclusion pay.

If you have any questions regarding supplemental COVID-19 paid sick leave in California or how it might impact your business, please contact the authors or any member of the McGuireWoods labor and employment team.

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.