New 2022 Version of COVID-19 Supplemental Paid Sick Leave (SB-114)
The state of California has passed a new 2022 version of COVID-19 Supplemental Paid Sick Leave (SPSL) that is set to take effect on February 19, 2022, and apply retroactively back to January 1, 2022. The new law, SB-114 (AB-84), applies to employers with 26 or more employees and is in effect until September 30, 2022. There are some notable differences between the 2022 and the 2021 COVID Sick Leave requirements. Further guidance and FAQs should be available soon on the Labor Commissioner’s webpage. Key points from the statute follow below.
SB-114 Employment: COVID-19: Supplemental Paid Sick Leave (2022)
All employees of covered employers are eligible, regardless of status, hours worked per week, or length of employment. If you hire an employee today and they need to use COVID-19 SPSL tomorrow, they can.
The 2022 COVID-19 SPSL provides two separate categories of leave:
Category 1 COVID-19 SPSL
Up to 40 hours of Category 1 COVID-19 SPSL for a list of reasons related to COVID (See Category 1 COVID-19 SPSL).
Category 2 COVID-19 SPSL
Up to 40 hours of Category 2 COVID-19 SPSL is provided only when an employee, or a family member they provide care for, tests positive for COVID-19 (See Category 2 COVID-19 SPSL).
Full-time employees and those who have worked, or were scheduled to work, an average of 40 hours (or more) over the two weeks before their leave are entitled to 40 hours for Category 1 COVID-19 SPSL and an additional 40 hours for Category 2 COVID-19 SPSL.
Part-time employees are entitled to the number of hours they are usually scheduled to work during the week. If they have a variable schedule, they are entitled to seven times the average number of hours they worked each day in the previous six months (or the entire duration of employment if they’ve worked less than six months) or, if they have worked for seven days or less, the number of hours they have worked before taking leave. The same calculation applies for their bank of Category 1 COVID-19 SPSL hours and their bank of Category 2 COVID-19 SPSL hours.
Category 1 COVID-19 SPSL
Employees can use up to 40 hours of Category 1 COVID-19 SPSL if they are unable to work or telework because:
- They are subject to a quarantine or isolation period related to COVID-19 according to an order or guidance of a public health authority.
- They have been advised by a health care provider to isolate or quarantine due to COVID-19.
- They are attending an appointment for themselves or a family member to receive a COVID-19 vaccine or a vaccine booster.
- They are experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster (for each shot, the employer can limit leave to 3 days or 24 hours, unless the employee provides verification from a health care provider that symptoms are ongoing).
- They are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.
- They are caring for a family member who is isolating or quarantining because of COVID-19 according to an order or guidance of a public health authority or their health care provider’s advice.
- 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.
Category 2 COVID-19 SPSL
Employees can use up to 40 hours of Category 2 COVID-19 SPSL hours if they are unable to work or telework because:
- They test positive for COVID-19
- A family member they provide care for tests positive for COVID-19
Employers cannot require employees to:
- Exhaust their Category 1 COVID-19 SPSL hours before using their Category 2 COVID-19 SPSL hours;
- Use their state-mandated paid sick leave (PSL), vacation, PTO, or any other leave benefit before or instead of using COVID-19 SPSL for a covered reason; or
- Use COVID-19 SPSL prior to providing paid leave under any Cal-OSHA COVID-19 Emergency Temporary Standard (e.g., in lieu of exclusion pay).
Employers must notify employees of how much COVID-19 SPSL they have used each pay period on their itemized wage statements or on a separate writing at the time wages are paid (even if that number is “zero”). This requirement won’t be enforced until the next full pay period following February 19.
Last year’s version of COVID-19 SPSL required that employers show employees the remaining available balance of their COVID-19 SPSL; this is different for 2022. The available balance or remaining amount for 2022 COVID-19 SPSL is not required to be provided to the employee on the paystub or in writing. This is because an employee’s balance is unknown—it will depend on whether they ever qualify for Category 2 COVID-19 SPSL, and for many employees, their balance will also depend on how many hours they have worked before taking leave.
Rate of Pay
Non-exempt employees should be paid at their regular rate of pay for the work week during which they use leave. If their rate of pay is not determinable just by looking at the week in question, divide the employee’s total wages (not including overtime or premium pay) by the employee’s total non-overtime hours worked in the full pay periods in the 90 days before they take leave. Exempt employees should be paid at the same rate you pay them for other forms of paid leave.
Employers can limit pay for COVID-19 SPSL to $511 per day per employee and $5,110 total per employee.
Offsetting an Employee’s COVID-19 SPSL Hours
Employers who provided an employee with another form of COVID-19-specific paid leave on or after January 1, 2022, can count those hours toward the employee’s COVID-19 SPSL entitlement. The leave provided must have been available for a reason covered by COVID-19 SPSL. The offset does not apply if an employee used their state-mandated paid sick leave (PSL), PTO, vacation, or other non-COVID-19 leave.
There are two likely scenarios where an offset will apply: if an employer is voluntarily providing COVID-19-specific leave, separate from PSL and their regular PTO program; or if the employer has provided paid leave under a city- or county-mandated COVID-19-specific leave law.
Retroactive Pay for Leaves Between January 1 and February 18, 2022
If an employee took leave between January 1, 2022, and February 18, 2022, for a qualifying reason under the new COVID-19 SPSL, but was not paid for this leave in the amount required under this law, they have the right to ask their employer for a retroactive payment equal to the amount required.
After the employee makes the oral or written request, the employer will have until the payday of the next full pay period to pay the retroactive COVID-19 SPSL.
Based on the language in the statute, it appears that employees who used PSL or other PTO (at the same rate of pay as COVID-19 SPSL) before February 19 will be entitled to request that those hours be converted to COVID-19 SPSL.
Documentation from Employees
Employees are entitled to take Category 1 COVID-19 SPSL immediately upon oral or written request and may not be required to provide medical certification or proof of their need for leave.
Employers can require proof of an employee’s positive COVID-19 test to confirm their need for additional paid leave via Category 2 COVID-19 SPSL. While the law says an employer can also require proof of a family member’s positive test, the Equal Employment Opportunity Commission (EEOC) believes that this is prohibited by the federal Genetic Information Nondisclosure Act. Check with your Legal Advisor for your company’s policy and practices on this. The state (or the EEOC) may provide further guidance on this.
Employers can require employees who take Category 2 COVID-19 SPSL to provide a negative test five or more days after their positive test before returning to the workplace. If this is required, the employer must pay for it.
Employers must post a notice in a conspicuous location in the workplace. Employers whose workforces are remote, or partly remote, may satisfy the notice requirement by disseminating notice through electronic means, such as by electronic mail. A model notice is available on the Labor Commissioner’s webpage.
2022 COVID-19 SPSL Frequently Asked Questions
The Labor Commissioner also released guidance on the new 2022 COVID-19 SPSL, which can be found on their FAQ page here: 2022 SPSL FAQs