On February 9, 2022, California Governor Newsom signed Senate Bill 114 (“SB 114”) into law to re-enact the State’s COVID-19 supplemental paid sick leave, effective February 19, 2022, but with key differences from prior supplemental paid sick leave law (“SB 95”). SB 114, which applies retroactively to January 1, 2022, requires employers with 26 or more employees to provide eligible employees with up to 80 hours of supplemental sick leave through September 30, 2022. Leave must be provided when an employee is unable to work or telework for COVID-19 related reasons, including because the employee is: - Subject a quarantine or isolation period related to COVID-19, as defined by an order or guidance of the California Department of Public Health, the Centers for Disease Control and Prevention, or a local public health officer;
- Advised by a health care provider to isolate or quarantine due to COVID-19;
- Attending an appointment for themselves or a family member to receive a COVID-19 vaccine or a vaccine booster;
- Experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster;
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to isolate or quarantine; or
- Caring for a child whose school or place of care is closed or unavailable for reasons related to COVID-19 on the premises.
Employees who are considered “full-time” as defined within the new law, will be entitled to at least 40 hours of supplemental paid sick leave for qualifying reasons. If they or a family member test positive for COVID-19, however, the employee may be entitled to up to 40 hours of “additional” paid supplemental sick leave, subject to certain conditions. Notably, if leave is requested in connection with a positive COVID-19 test result, SB 114 permits employers to require that employees submit documentation of COVID-19 testing, including testing for a COVID-19 positive family member for whom the employee is caring. Employers can refuse to provide the additional 40 hours of paid leave to employees who decline to provide COVID-19 testing results. In addition, if an employee tests positive, an employer may require the employee to submit to a diagnostic test on or after the fifth day following the positive test result and may require documentation of the results (in which case the employer must make that test available at no cost to the employee). When leave is related to a vaccination or booster, employers are permitted to limit the total COVID-19 supplemental paid sick leave to three days or 24 hours per dose, unless the employee provides verification from a health care provider that the employee or their family member is continuing to experience vaccine or booster-related symptoms. Unlike SB 95, under SB 114, employers cannot require employees to first use and exhaust supplemental paid sick leave during periods when the employee is entitled to exclusion pay under Cal/OSHA’s Emergency Temporary Standards (“ETS”). As a result, employees who are excluded from the workplace under the Cal/OSHA ETS can maintain their full supplemental sick leave entitlement. Covered employers may notice a corresponding increase in the amount of time off with pay that must now be provided to eligible employees due to this key change in the law. SB 114 also changes paystub requirements related to the leave. Employers must list the amount of supplemental paid sick leave used through the applicable pay period. For example, if an employee has not used any such leave, the paystub should reflect zero hours. Employers are also required to post a notice about the new supplemental paid sick leave benefit in the workplace (or, for remote employees, distribute the notice electronically), and the California Labor Commissioner will make a model poster available for use within the next week. SB 114 prohibits retaliation against a covered employee for requesting or using COVID-19 supplemental paid sick leave. Covered employees alleging violations of the law may file a wage and/or retaliation claim with the California Labor Commissioner, the State agency charged with enforcement of the law. Although COVID-19 cases continue to decrease across the State, California employers covered by the State’s latest supplemental paid sick leave law should begin compliance efforts. Do not hesitate to contact the authors of this article or your usual AALRR counsel for assistance with implementation of SB 114, including responding to retroactive paid sick leave requests and the law’s interaction with applicable local supplemental paid sick leave ordinances and Cal/OSHA ETS exclusion pay. |
