California Passes a New Version of Supplemental Paid Sick Leave

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On Feb. 9, 2022, Gov. Gavin Newsom signed into law a COVID-19 Supplemental Paid Sick Leave (SPSL), effective Feb. 19 and retroactive to Jan. 1, 2022. California’s previous COVID-19 SPSL expired Sept. 30, 2021.

The newer law expires Sept. 30, 2022. If a covered employee is using SPSL on Sept. 30, however, and the absence would continue uninterrupted past Sept. 30, the employee may continue using available SPSL.

The maximum hours of SPSL a full-time employee may take during the period from Jan. 1, 2022 to Sept. 30, 2022 is 80 hours.

The new law was enacted as SB 114 and is codified in Labor Code 248.6 - Labor Code 248.7. To read the law see https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB114

Covered Employers

As with the 2021 version, public and private employers with more than 25 employees must comply with SPSL.

Covered Employees

Full- and part-time employees are entitled to SPSL if they are unable to work or telework for any of the reasons detailed in the legislation. There is no length of service requirement for the leave entitlement. The bill specifically includes firefighters, and providers of in-home supportive and waiver personal care services.

Definition of Family Member

"Family member” means: a child, including a biological, adopted, or foster child or stepchild; a parent, including a biological, adoptive, foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner; a spouse; a registered domestic partner; a grandparent; a grandchild; a sibling.

Covered Reasons for Leave

Covered employees are entitled to SPSL for these reasons:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
2. The covered employee has been advised by a health-care provider to isolate or quarantine due to COVID-19.
3. The covered employee is attending an appointment for himself/herself or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
4. The covered employee is experiencing symptoms or caring for a family member experiencing symptoms related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
7. The covered 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.
8. The employee tests positive or is caring for a family member who tests positive for COVID-19.

Request for Leave

An employer must make SPSL available for immediate use upon an employee’s oral or written request. The employee may decide how many hours of SPSL to use. An employer may not require the employee to use any other paid or unpaid time off (including paid time off (PTO) or vacation time) before allowing the employee to use SPSL.

Calculating the Amount of Leave

A full-time employee is entitled to a total of 40 hours per week of SPSL if the covered employer satisfies either of these:

1. The employer considers the covered employee a full-time worker.
2. The covered employee worked, or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date she or he took SPSL.

Firefighters who were scheduled to work more than 40 hours in the workweek before they take SPSL are entitled to the amount of SPSL equal to the “total number of hours that the covered employee was scheduled to work for the employer in that workweek.” That could exceed 40 hours, for qualifying reasons 1 - 7.

Because the bill counts “the total number of hours that a [firefighter] was scheduled to work,” the plain language of the statute covers scheduled overtime. Employers should include such time in the SPSL allotment provided to firefighters. Notably, the bill does not address work schedules that vary week to week. Instead, the bill establishes firefighters’ SPSL entitlement based on the work hours scheduled for the week immediately preceding the week the firefighter takes SPSL. Firefighters often are scheduled to work different hours from one week to the next. The bill does not seem to consider that in determining the amount of leave that firefighters receive.

A part-time covered employee who doesn’t satisfy either of the full-time criteria is entitled to an amount of SPSL per one of these calculations:

1. if the employee has a normal weekly schedule –– the total number of hours the employee is normally scheduled to work over one week; or
2. if the employee works a variable number of hours –– seven times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took SPSL. If the employee has worked fewer than six months but more than seven days, the calculation should be made over the entire period the employee has worked for the employer. If the employee works a variable number of hours and has worked for the employer for seven days or fewer, she or he is entitled to the total number of hours worked for the employer. Of course, the calculation applies to both types of available leave.

Documentation of Positive COVID-19 Tests

Employers are permitted to require documentation of the positive test and may deny leave to any employee who refuses to provide it. There is no guidance as to the type of COVID-19 tests that are acceptable or whether the employer can require a certain type of COVID-19 test.

If the employee tests positive, the employer can require him or her to submit to a diagnostic test on or after the fifth day of the initial positive test and provide the employer a copy of the results. The employer must make the test available to the employee at no cost. Presumably, the employer can request the employee return to work if the follow-up diagnostic test is negative, although the law is silent on this point.

Use of Unpaid Leave or Employer-Provided Leave

An employee cannot be required to use unpaid leave or employer-provided leave such as vacation, PTO, or sick leave prior to the use of SPSL.

If an employee is eligible for exclusion pay under the Cal/OSHA Emergency Temporary Standards, SPSL hours cannot be used to offset any exclusion pay obligation.

Limitations on the Use of SPSL

Although SPSL allows for time off for vaccination, including receiving a booster, employers may limit the leave for time to attend the appointment and side effects for each vaccination or booster to three days or 24 hours unless the employee provides verification from a health-care provider that the employee (or his/her family member) is continuing to experience adverse symptoms.

Documentation of a Positive COVID-19 Test

If an employee requests leave because she or he tested positive for COVID-19 or to care for a family member who did, the employer may request documentation of the positive test.

Calculating the SPSL Rate of Pay for Nonexempt Employees

Nonexempt employees are to be compensated based on a calculation made:

• in the same manner as the regular rate of pay for the workweek in which the employee use SPSL; or
• by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay periods of the previous 90 days worked.

Calculating SPSL Pay for Exempt Employees

Exempt employees are to be paid in the same manner as other forms of paid leave time.

Maximum Amount of SPSL Pay

An employee is entitled to a maximum of $511 per day and $5,110 in aggregate in SPSL pay. If an employee reaches the maximum paid leave, he or she may use any other paid leave available in order to be fully compensated for the leave.

Available Offsets

The amount of paid leave employees received in 2022 before the SPSL law took effect might qualify as an offset that wholly or partially satisfies an employer’s 2022 SPSL obligations. If an employer paid an employee another benefit for leave taken on or after Jan. 1, 2022 that paid the employee for the SPSL’s covered reasons and compensates the employee in an amount equal to or greater then what is required by the SPSL, it might be able to count those hours toward the number of SPSL hours it must provide under the new law.

The amount paid must be a supplemental benefit and in addition to other leave benefits the employer is required to provide either pursuant to law (such as sick leave under California's Healthy Workplace Healthy Family Act) or the employer's own policies (such as vacation, PTO, or sick leave).

In addition, if the employee used other benefits in 2022 –– for example, sick leave under the Healthy Workplace Healthy Family Act –– but before the effective date of the new SPSL, the employee may request a credit or offset so that the employer applies the SPSL benefit and credits the employee back the other leave used.

Notice Requirement

The employer must provide an employee with written notice that defines the amount of COVID-19 supplemental paid sick leave that the worker has used through the pay period in which it was due to be paid. The information must be included on either the employee’s itemized wage statement or in a separate communication provided on the designated pay date with the employee’s payment of wages.

The employer must list zero hours used if a worker has used no COVID-19 supplemental paid sick leave.

Employers are required to post a notice to be developed by the Labor commissioner about the SPSL benefit. If an employer’s covered employees do not frequent a workplace, the employer may satisfy this requirement by disseminating the notice through electronic means, such as e-mail.

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