CA COVID-19 Additional Paid Sick Leave Begins Again
We have previously described the “framework” of a agreement to reinstate California’s Supplemental Paid Sick Leave. Governor Newsom signed into law Senate Bill (“SB”) 114 on February 9, 2022. Details of the bill are summarized below.
New California COVID-19 Supplemental Paid Sick Leave Law
In 2021, California enacted Senate Bill (“SB”) 95, which granted COVID-19 Supplemental Paid Sick Leave (“CSPSL”) to covered employees. SB 95 expired on September 30, 2021. SB 114 is the new CSPSL law that will apply in 2022.
The SB 114 is similar to the SB 95 in many ways:
Both apply to employers with more than 25 employees;
Both apply retroactively; and
Both cap the CSPSL at $511 per day or $5,110 in total.
There are, however, critical differences between the two laws. For example:
SB 95 provided up to 80 hours of CSPSL in a Single lot, while SB 114 provides CSPSL in of them batches (each batch allowing up to 40 hours of CSPSL);
SB 95 required salary statements to show the number of days off available, while SB 114 requires salary statements to show the number of days off used; and
Each law uses different methods of calculating the regular wage rate to compensate for the CSPSL.
SB 114 provides CSPSL in two batches, each batch allowing up to 40 hours of CSPSL. Full-time employees, or those who have worked or had to work, on average, at least 40 hours per week in the two weeks preceding the date of taking the CSPSL are entitled to 40 hours of CSPSL. Part-time employees with normal weekly hours are entitled to the total number of hours normally scheduled for a week, without exceeding 40 hours. Part-time employees on variable hours are entitled to seven times the average number of hours worked each day during the six months preceding the date on which the employee moves to the CSPSL, without exceeding 40 hours.
Employees may use up to 40 hours of CSPSL if they are unable to work or telecommute for the following specified reasons:
They are subject to a period of quarantine or isolation related to COVID-19 as defined by order or guidance from the state Department of Public Health, Federal Centers for Disease Control and Prevention (CDC) or a competent local public health official. At work ;
They have been advised, by a health care provider, to self-isolate or quarantine due to COVID-19;
They show symptoms of COVID-19 and request a medical diagnosis;
They care for a family member who is undergoing a period of quarantine or isolation related to COVID-19, or who has been advised by a health care provider to self-isolate or quarantine ;
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;
They show up for an appointment for themselves or a family member to receive a COVID-19 vaccine or booster; Where
They have symptoms – or are caring for a family member with symptoms – linked to a COVID-19 vaccine or booster that prevents them from working or telecommuting.
Employees can determine the number of hours of CSPSL to use, up to the total number of hours they are entitled to, except that they may be limited to 24 hours of CSPSL for the vaccine-related reasons listed above ( #6 and 7) unless they provide medical information. certification requiring additional time. This limitation applies to each vaccine or booster.
Employees can use up to 40 Additional CSPSL hours for the following two reasons:
The employee tests positive for COVID-19. The employer may require the employee to submit their original positive test, and may also require the employee to submit to a diagnostic test on or after the 5th day of the positive test and provide documentation of those results. Employers must make confirmatory testing available at no cost to the employee. There is no obligation to provide overtime under Batch 2 if the employee refuses to provide documentation of the initial positive test and/or confirmatory test; Where
The employee’s family member, for whom he is providing care, has tested positive for COVID-19. The employer may require the employee to provide documentation of the family member’s positive test results before paying the additional leave. There is no obligation to provide overtime under Batch 2 if the employee refuses to provide documentation of the family member’s positive test.
Interaction with other sheets
As with SB 95, CSPSL under SB 114 is in addition to any other “normal” paid sick leave. Employers must make the CSPSL available upon “oral or written request”. Additionally, employers can no longer require an employee to use CSPSL as part of providing the employee with “exclusion pay” required by temporary Cal-OSHA emergency standards, such as described below.
Employers cannot require employees to use other paid or unpaid time off, paid time off, or vacation before using or instead of using the CSPSL.
Calculation of the CSPSL rate of pay
Unlike SB 95, the method of calculating the rate of pay prescribed by SB 114 aligns with the calculation of the rate of pay under California’s Healthy Workplaces, Healthy Families Act. Thus, employers must remunerate non-exempt employees in That is:
Use the same as the regular rate of pay for the work week in which the employee uses paid sick leave (whether or not the employee works overtime during that work week); Where
Divide the employee’s total pay (not including overtime premium) by the total number of non-overtime hours worked by the employee during complete pay periods that occurred during the previous 90 days of employment; provided that (for non-exempt employees paid by piece rate, commission or by some other method which uses all hours to determine the normal rate of pay) the total wages, not including premium for overtime, shall be divided by all hours to determine the correct CSPSL amount.
Exempt employees must be paid the same way the employer calculates wages for other forms of paid time off.
CSPSL payment ceiling
Similar to SB 95, SB 114 caps CSPSL at $511 per day or $5,110 total. Employees who have reached these caps are permitted to use other available paid time off (for example, paid vacation, paid vacation, or regular paid sick leave), provided that the terms of the policies permit the use of time off in such circumstances, to cover their otherwise unpaid time off. CSPSL payments must be made no later than the payday of the next regular pay period following the leave.
Wage statement requirements
SB 114 requires employers to report the amount of 2022 CSPSL the employee used during the pay period in which they were due to be paid. A zero must be entered if an employee has not yet used a CSPSL 2022. This wage reporting requirement is not enforceable until the next full pay period following February 19, 2022.
Employers must post a notice (or distribute a notice electronically if employees do not attend a workplace) to employees regarding the new CSPSL rules. The California labor commissioner is required to issue a model notice by February 16.
Use of CSPSL 2022 for Exclusion Allowance Required Under Cal/OSHA Temporary Emergency COVID-19 Standard (“ETS”)
Like previously noted, Cal/OSHA’s ETS requires employers to exclude employees who have a confirmed case of COVID-19 or who are a “close contact” of someone who has a confirmed case, and pay compensation. exclusion to excluded employees whose exposure was work-related. Previously, employers could require employees to first use up and exhaust their CSPSL before the employer would provide exclusion pay. SB 114 eliminates this option, and now employers cannot require an employee to exhaust their 2022 CSPSL before providing employer exclusion pay.
Employers with more than 25 employees should review their sick leave policies, update their pay slips and ensure they comply with SB 114 requirements. Employers should also monitor the California Labor Commissioner’s Web pagebecause advice is coming.
The legal landscape continues to evolve rapidly and there is a lack of clear authority or clear rules on implementation. This article is not intended to be a unique and unequivocal guide, but rather represents our interpretation of the current and general state of applicable law. This article does not address the potential impacts of the many other local, state, and federal orders that have been issued in response to the COVID-19 pandemic, including, but not limited to, potential liability if an employee becomes ill, requirements regarding family leave, sick leave pay, and other issues.
Victoria Ayeni also contributed to this article.
Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 42