As we recently reported the California legislature had proposed a COVID-19 Supplemental Paid Sick Leave bill (AB 84) which would provide for the payment of Supplemental Paid Sick Leave benefits to employees similar to the law which expired in September 2021.
The law has now been signed by Governor Newsom requiring the retroactive payment of COVID-19 Supplemental Paid Sick Leave (SPSL) benefits. Of significance, the new law, SB 114, does not provide for any offsetting tax credits for employers to assist with the added financial burden this new SPSL requirement will place on businesses across the state.
A. Covered Employers: The law applies to employers with more than 25 employees.
B. Covered Employees: An employee who is unable to work or telework due to the specified reasons described below.
C. Effective & Expiration Dates: The law goes into effect on February 19, 2022. The law applies retroactively to January 1, 2022. The SPSL requirement expires on September 30, 2022 (however, if an employee is currently using SPSL as of the expiration date, the SPSL can continue past the September 30th expiration date.)
D. Paid Sick Leave Benefits:
An employee is potentially eligible for up to 80 hours of leave available under two different banks of time. The SPSL benefits are in addition to any other type of paid sick leave or PTO the employee is eligible to receive.
Bank #1: One week (40 hours for full-time employees) of SPSL where the employee is unable to work or telework because:
- the employee is attending a COVID-19 vaccine appointment for themselves or a family member (child, step-child, foster child, parent, step-parent, foster parent, legal guardian, spouse, registered domestic partner, grandparent, grandchild, sibling);
- the employee is experiencing symptoms, or is caring for a family member who is experiencing symptoms related to a COVID-19 vaccine or vaccine booster (subject to the limitations set forth below);
- the employee has been advised by a health care provider to isolate or quarantine due to COVID-19 or is caring for a family member who has been advised to isolate or quarantine;
- the employee is subject to a quarantine or isolation period related to COVID-19 as required by an order or guidance published by the California Department of Public Health (CDPH), the Centers for Disease Control (CDC), or a local public health officer who has jurisdiction over the workplace; or is caring for a family member who is subject to such an order or guidance requiring quarantine or isolation; and
- the employee is caring for a child (including step-child or foster child), whose school or place of care is closed or otherwise unavailable due to COVID-19 related reasons.
Limitation on use of SPSL for vaccination purposes: For each vaccination/shot received, the employer may limit the total SPSL to 24 hours/3 8-hour days, unless the employee provides verification that the employee or family member is continuing to experience symptoms related to the COVID-19 or vaccine booster beyond the 24-hour period, in which case additional leave is required (up to the maximum of 40 hours).
This 24-hour period limitation includes the leave granted for attending the vaccine appointment and is not just limited to the post-vaccine period where symptoms are present.
Bank #2: Employees are entitled to another bank of 40 hours of paid leave if the employee is unable to work or telework because the employee or a family member the employee is providing care to test positive.
E. Determining Amount of Pay for SPSL:
- Hourly (non-exempt) Employees: Benefits are paid at the same regular rate of pay calculation that is used and required for mandatory paid sick leave under California law.
- Alternatively the wage rate for SPSL can be determined by dividing the employee’s total wages (not including overtime premium pay), by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior ninety days of employment before the leave is taken; provided that, for nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of COVID-19 supplemental paid sick leave.
- Salaried (Exempt) Employees: Benefits are paid at the same rate of pay for each full week of work.
- Cap on Payments: The total SPSL is capped at 80 hours for the period between January 1, 2022, to September 30, 2022.
- Employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee (unless federal legislation changes these amounts set forth in the FFCRA).
F. Retro-activity of SPSL: If an employee requests retroactive COVID-19 SPSL, and the employee was not previously compensated in an amount equal to or greater than the amount of compensation required under SB 114, the employer must make a retroactive payment that provides for such compensation.
The employer should pay the retroactive compensation on or before the payday for the next full pay period after the oral or written request by the employee. The employer should also make sure its payroll records/paystub accurately records and reflects this payment.
In addition, if the employee utilized other available leave for reasons covered by SB 114 and makes a request for retroactive coverage, the employer must restore any other leave hours used for COVID-specific leave purposes.
If an employee seeks retroactive pay, the employer can still require the employee to produce documentation of a positive COVID-19 diagnostic test before honoring the request.
G. Interaction with Other Paid Sick Leave:
- California Paid Sick Leave: The SPSL is in addition to the paid sick leave employees are entitled to under California’s Healthy Workplaces, Healthy Families Act or any local paid sick leave ordinance.
- Exclusion Pay: Employees also cannot be required to first exhaust the SPSL before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).
H. Pay stub requirements: The law requires employers to provide a notice to employees of the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid. This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day.
The employer shall list “zero hours used” if a worker has not used any COVID-19 SPLS. This requirement takes effect the next full pay period following February 19, 2022.
Employers will need to track the reason for any leave taken by an employee and how much of the leave the employee has taken under each of the two banks of leave available.
I. Poster: Employers are also required to post or distribute a notice to employees that will be developed by the Labor Commissioner. The Labor Commissioner is in the process of updating its website, and will make the posters and FAQs available here.
Steps to Take Now:
- Prepare an updated policy on the new SPSL law.
- Develop a system to track employee absences and eligibility for SPSL under either Bank #1 or Bank #2
- Update Pay stubs to ensure SPSL is noted in compliance with the law
- Post and distribute the Labor Commissioner’s notice when issued
- Review employee absences since January 1, 2022, to determine if anyone will be eligible for retroactive payment of SPSL.
- Determine if the COVID-19 related absence is due to a workplace exposure which would trigger the “exclusion pay” requirement, not SPSL. This includes when an employee must quarantine because they were exposed to someone at work who had COVID-19 or when an employee contracts COVID-19 from the workplace.
As the guidance issued by the state, local and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2022.