- Applies to employers with at least 26 employees nationwide;
- Provides a new bank of up to 80 hours of COVID-19 paid sick leave (divided into two leave banks of up to 40 hours for specific qualifying reasons);
- Employer obligation to provide leave beings February 19, 2022;
- Will take effect retroactively to January 1, 2022 and will remain in effect until September 30, 2022;
- Employers will need to consider retroactive payments for previously taken qualifying leave;
- Applies to employees who are unable to work or telework due to a COVID-19 qualifying reason (which includes additional reasons for 2022);
- Requires an employee’s wage statement or paystub to reflect an employee’s use of leave;
- Requires employers to provide a notice.
On February 9, 2022, California (CA) Governor Gavin Newsom signed Senate Bill 114 which revives and expands the state’s COVID-19 supplemental paid sick leave requirements that expired on September 31, 2021. For more on the expired regulations, please visit our blog: California Re-Enacts and Broadens COVID-19 Supplemental Sick Leave in 2021.
This article provides an overview of the 2022 version of CA COVID-19 Supplemental Sick Leave (2022 CA Supplemental Sick Leave) and highlights notable expansions and differences from its predecessor.
Which employers are covered by 2022 CA Supplemental Sick Leave?
Just like the prior version, 2022 CA Supplemental Sick Leave applies to employers with at least 26 employees nationwide and at least one employee in California.
Who is covered by 2022 CA Supplemental Sick Leave?
It applies to employees who are not able to work or telework for any of the qualifying reasons (noted immediately below).
What are the qualifying COVID-19-related reasons for 2022 CA Supplemental Sick Leave?
An employee may take up to 40 hours of leave if they are unable to work or telework due to the following reasons:
- Employee is subject to a quarantine or isolation period related to Covid-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer with jurisdiction over the workplace;
- Employee has been advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19;
- Employee or family member is attending an appointment to receive a vaccine or booster for protection against contracting COVID-19;
- Employee or family member is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
- Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Employee is caring for a family member who is subject to a quarantine or isolation order or guidelines, or who has been advised to self-quarantine or isolate by a health care provider; or
- Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19;
An additional 40 hour bank of 2022 COVID-19 Paid sick leave is available if the employee or family member tests positive for COVID-19, as outlined below:
- If the employee tested positive, an employer may require the employee submit to a diagnostic test on or after the fifth day after the initial test was taken and provide documentation of those results. Employers are required to make such a test available at no cost to the employee;
- If the employee requests to use additional leave because a family member for whom they are providing care tests positive for COVID-19, the employer may require that the employee provide documentation of that family member’s test results;
- The employee does not need to exhaust their first 40-hour bank of leave to access this second 40-hour leave bank reserved for positive COVID-19 tests;
- An employer is not required to provide this additional 40 bank of leave to an employee who refuses to provide documentation of the results of the test upon the request of the employer.
As a reminder, family member is defined by reference to California Labor Code 245.5, and includes: child (biological, adopted, foster, stepchild, legal ward, someone to whom the employee is ‘in loco parentis,’ and in all cases regardless of age or dependency status); parent (biological, adoptive, foster, stepparent, or legal guardian, and whether the employee’s or the employee’s spouse or registered domestic partner); spouse; registered domestic partner; grandparent; grandchild; and, sibling.
Are there permitted limitations on the use for 2022 COVID-19 Supplemental Sick Leave?
While 2022 COVID-19 Supplemental Sick Leave allows for time off for vaccination (including receiving a booster), employers may limit the leave for symptoms for each vaccination to 3 days or 24 hours unless the employee provides verification from a health care provider that the employee or family member has continued symptoms.
What amount of 2022 CA Supplemental Sick Leave must be provided?
While the maximum amount of leave available is 80 hours, there are now two separate leave banks of 40 hours each that amount to this total. 2022 CA Supplemental Sick Leave hours to which an employee is entitled still depends on the employee’s regular work schedule as follows:
Full Time Employees are entitled up to a total 40 hours under each leave bank if:
- the employer considers the employee “full time,” or
- the employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks prior to the date of leave.
Part Time Employees with Fixed Schedules are entitled to an amount of leave equal to the total number of hours they are normally scheduled to work for the employer over two weeks if:
- the employee is not considered “full-time” by the employer; and
- the employee works normal or fixed weekly schedules.
Part Time Employees with Variable Schedules are entitled to 7 times the average number of hours they worked each day in the six (6) months prior to leave. In calculating the average number of hours worked by a part-time worker with a variable schedule over the past six months, the figure is determined based on the total number of days in the 6-month period, not just the number of days worked. If the employee has worked less than 6 months, the total length of employment is used. If the employee has been employed for 14 days or less, the total number of hours worked is used.
For example, a new employee has worked for a total of two days—one day for 1 hour and a second day for 6 hours over the past two weeks:
- Total # of Hours Worked – 7 hours
- Total # of Days in 6-month Period – 14 days
- Average # of Hours Worked per Day – 7 hours/14days = 0.5 hours
- 2022 CA Supplemental Sick Leave Entitlement – 0.5 hours x 7 = 3.5 hours
Employers should note that this methodology determines the amount of leave the employee is entitled to under the first 40-hour bank of leave. As discussed above, the employee would then also be eligible for the same amount of leave under the additional 40-hour bank available for a positive COVID-19 test.
What is the rate of pay for 2022 CA Supplemental Sick Leave?
The applicable rate of pay differs from its predecessor by using the same methodology under California’s existing general paid sick leave law, to determine regular rate of pay:
- For nonexempt employees, the regular rate of pay is determined by one of the following:
- Calculated in the same manner as the 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; or
- Calculated 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 90 days of employment; 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.
- For exempt employees, regular rate of pay calculated in the same manner as the employer calculates wages for other forms of paid leave time.
Like the prior law, the new legislation caps the amount of leave required to be paid at $511 per day and $5,110 in the aggregate.
When must 2022 CA Supplemental Sick Leave be provided?
The employee with a qualifying COVID-related reason determines the amount of leave they would like to use (up to an 80-hour maximum) and an employer must make the leave available immediately upon the employee’s oral or written request. The requirement to provide 2022 CA Supplemental Paid Sick Leave is retroactive to January 1, 2022.
How long will 2022 CA Supplemental Sick Leave be effective?
Unless extended by the California Legislature, CA Supplemental Sick Leave is set to expire on September 30, 2022. If the expiration occurs while an employee is on leave, the employee may continue taking the amount of leave they are entitled to receive under the law.
Do employers need to pay employees for past qualifying leave taken after January 1, 2022?
Yes. CA Supplemental Sick Leave applies retroactively to January 1, 2022. If an employee previously took leave on or after January 1, 2022 that otherwise would have qualified under 2022 CA Supplemental Sick Leave and the employer did not provide paid leave compensated at the level required by 2022 CA Supplemental Sick Leave, then upon the oral or written request of the employee, the employer must provide the covered employee with a retroactive payment. This retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request of the covered employee and must be reflected on the corresponding wage statement.
For example, if the employee used 5 days in January 2022 from another paid time off policy for a COVID-related reason that is covered by 2022 CA Supplemental Sick Leave, the employee can request that the employer use 2022 CA Supplemental Sick Leave to cover that leave and must replenish the 5 days to their other leave bank that was used.
Can employers require documentation from a healthcare provider?
Senate Bill 114 does not generally condition leave on medical certification and employers may not deny 2022 CA Supplemental Sick Leave solely on a lack of certification from a healthcare provider (except for failure to provide documentation of a positive COVID-19 test in order to access the second 40-hour bank of leave as discussed above). If an employee requests leave because they tested positive for COVID-19 or to care for a family member who tested positive for COVID-19, then the employer may request documentation of the positive test. We anticipate the Labor Commissioner may provide more guidance on this exception as we approach the February 19, 2022 effective date.
How does 2022 CA Supplemental Sick Leave interact with existing leave policies?
2022 CA Supplemental Sick Leave is “in addition to” other paid sick leave that employees have available, and employers cannot require employees to use other paid or unpaid time off before using their entitlement. However, employers may offset federal or local leave provided for reasons overlapping with 2022 CA Supplemental Sick Leave. For more information about local expansions of COVID-related paid sick leave please visit our blog: Expansion of State/Local Sick Leave in Response to COVID-19.
Can an Employer Offset any COVID-19-related Sick Leave Previously Provided since January 1, 2022?
An employer can offset sick leave provided since January 1, 2022 if the following conditions are met:
- The leave was provided at the same (or greater) rate of pay as required by 2022 CA Supplemental Sick Leave;
- This offset may include leave provided under any federal or local law that was effective on or after January 1, 2022, except for non-COVID sick leave taken under California’s paid sick leave law (also known as the California’s Healthy Workplaces, Healthy Families Act);
- The leave was provided for the same qualifying COVID-related reasons as provided under 2022 CA Supplemental Sick Leave.
For example, if an employer provided 40 hours of leave under a local ordinance for a qualifying COVID-19 related reason in January 2022, this leave could be offset against the up to 80-hour entitlement for CA Supplemental Sick Leave, meaning that the employer can subtract the 40 hours of leave already provided from the total 2022 CA Supplemental Sick Leave to which an employee may be entitled.
How does 2022 CA Supplemental Sick Leave interact with Cal/OSHAs Emergency Temporary Standards requirement to provide leave for COVID-19 exposures or illness?
The Cal-OSHA COVID-19 Emergency Temporary Standards (ETS) require an employer to pay an employee when an employee is excluded from the workplace due to COVID-19 exposure. Notably, an employer may no longer require a covered employee to first use any 2022 CA Supplemental Sick Leave available to them while they are excluded from the workplace due to exposure.
What are the notice posting requirements?
Employers must conspicuously display the notice poster provided by the Labor Commissioner’s Office in their workplaces. If employees do not frequent a workplace, employers may distribute the poster electronically. The Labor Commissioner is expected to release the 2022 version of the CA Supplemental Sick Leave posting as we approach the February 19, 2022 effective date.
What are the wage statement requirements?
Employers are required to provide written notice of the amount of 2022 CA Supplemental Paid Sick Leave available on employees’ itemized wage statements or in a separate writing that meets the following requirements:
- Must be recorded separately from regular paid sick days;
- Any true-up payments for leave employees used on or after January 1, 2022 must be on the paystub for the pay period during which payment is made;
In addition, and unlike the prior version of this law, Senate Bill 114 requires employers to list the amount of 2022 CA Supplemental Sick Leve the employee has used through the applicable pay period as opposed to displaying only the amount of leave available. The law explicitly states that if an employee has not used any 2022 CA Supplemental Sick Leave, the employer will need to note zero hours on their paystub.
Are there any other prohibitions placed on employers?
Employers are prohibited from retaliating against an employee for using or attempting to exercise their rights to 2022 CA Supplemental Sick Leave.
How will 2022 CA Supplemental Sick Leave be enforced?
The law authorizes the Labor Commissioner to enforce the requirements of 2022 CA Supplemental Sick Leave. The Labor Commissioner or attorney general may also bring civil action to collect other legal or equitable relief, including reinstatement, back pay, the payment of sick days unlawfully withheld, and liquidated damages from employers who do not comply.
More employers are now required to provide 2022 CA Supplemental Sick Leave to their employees for COVID-19 related qualifying reasons. Employers are encouraged to consider taking the following actions:
- Review any existing sick leave policies and determine whether adoption of revisions are necessary to meet the requirements of 2022 CA Supplemental Sick Leave;
- Ensure payroll records and wage statements are in compliance;
- Be prepared to issue 2022 CA Supplemental Sick Leave retroactively and true-up if necessary;
- Post mandatory notice (once available);
- Given the increased complexity of overlapping state, local and federal COVID-19 paid sick leave requirements, employers should continue to monitor developments and consult with employment counsel to update employer policies, as necessary
- Senate Bill 114
- COVID-18 Supplemental Paid Sick Leave FAQs
- Side by Side Comparison of CA COVID-19 Paid Leave
- Labor Commissioner’s COVID-19 Guidance and Resources
- California healthy Workplaces, Healthy Families Act
- Sequoia Forewords: