On Feb. 9, 2022, Gov. Gavin Newsom signed new legislation, COVID-19 Supplemental Paid Sick Leave (Senate Bill 114), into law that will require all employers with more than 25 employees to provide their employees with up to 40 hours of COVID-19 supplemental paid sick leave. The legislation is retroactive to Jan. 1, 2022 and is currently set to expire on Sept. 30, 2022.
This article highlights five things employers should know about the bill.
An employee is eligible for up to 40 hours of supplemental paid sick leave if the employee is unable to work or telework and:
An employee is eligible for up to 40 additional hours of supplemental paid sick leave (80 hours total) if:
An employer may require that the employee provide documentation of their own or their family member’s positive COVID-19 test before paying the 40 hours of additional leave. An employer has no obligation to pay the additional leave to an employee who refuses to provide documentation of their or their family member’s positive COVID-19 test. This applies to employee requests for future and retroactive payment of the COVID-19 supplemental paid sick leave. However, employers should be practical about strict application of this requirement when responding to requests for retroactive application for test results before this law was passed. There may be instances when the employee is “unable to” as opposed to “refuses to” provide documentation (i.e., they took, but did not save, an at-home rapid test).
An employer may require that the employee (who tested positive for COVID-19) take a second test on or after the fifth day after the first positive test. The employer shall make such a test available at no cost to the employee. If the employee’s second test is negative, the employee may return to work if:
An employee who is considered full time OR an employee who worked, or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.
The total maximum amount an employee would be entitled to is 80 hours of supplemental paid sick leave between Jan. 1, 2022, and Sept. 30, 2022.
If an employee took other supplemental paid leave on or after Jan. 1, 2022 for the same reasons listed above and that leave was compensated in an amount equal to or greater than the amount of compensation to which the employee would be entitled to under this legislation, then the hours of the other paid leave may be counted toward the total number of hours an employee is entitled to under this legislation. For example, paid leave provided to employees under Cal/OSHA’s Emergency Temporary Standard’s exclusion pay or local supplemental paid sick leave orders may be counted toward the total supplemental leave available under this legislation.
Paid leave provided under Labor Code section 246 (California Paid Sick Leave) cannot be used for purposes of offset.
Each hour of COVID-19 supplemental paid sick leave must be compensated at a rate equal to the following (this is similar, but not identical, to the rate structures under Labor Code section 246):
Each hour of COVID-19 supplemental paid sick leave can be calculated as follows:
COVID-19 supplemental paid sick leave shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
Notwithstanding the above, an employer is not required to pay more than $511 per day or $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave taken by the covered employee.
A biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.
Disclaimer: Laws, regulations, and guidance on matters related to COVID-19 change rapidly. Please contact your Payne & Fears attorney for current guidance.