On February 9, 2022, Governor Gavin Newsom signed new legislation, COVID-19 Supplementary Paid Sick Leave (Senate Bill 114), in a law that will require all employers with more than 25 employees to give their employees up to 40 hours of COVID-19 additional paid sick leave. The legislation has retroactive effect to 1 January 2022 and is currently set to expire on 30 September 2022.
This article highlights five things employers should know about the bill.
A: When an employee is entitled to supplementary paid sick leave
An employee is entitled to up to 40 hours of additional paid sick leave if the employee is unable to work or work remotely and:
- is subject to a quarantine or isolation period related to COVID-19;
- has been advised by a healthcare provider to isolate or quarantine due to COVID-19;
- participates in an agreement for himself or a family member to receive a vaccine or vaccine booster to protect against COVID-19;
- 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 work remotely;
- experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- takes care of a family member who is subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to isolate or quarantine due to COVID-19;
- cares for a child (as defined below) whose school or childcare facility is closed or otherwise inaccessible for reasons related to COVID-19 on the premises.
Two: When an employee is entitled to additional supplementary paid sick leave
An employee is entitled to up to 40 extra hours of paid paid sick leave (a total of 80 hours) if:
- the employee is unable to work or work remotely, and either the employee tests positive for COVID-19 OR the employee’s family member, for whom the employee cares, tests positive for COVID-19; AND
- the employee provides, upon request, documentation of the positive test to the employer.
An employer may require the employee to provide documentation of their own or their family member’s positive COVID-19 test before paying the 40 hours of additional leave. An employer is not required to pay the extra leave to an employee who refuses to provide evidence of their or their family member’s positive COVID-19 test. This applies to employees’ wishes for future payment with retroactive effect of COVID-19 supplementary paid sick leave. However, employers should be practical with regard to strict application of this requirement when responding to requests for retroactive application of test results before the adoption of this law. There may be cases where the employee is “unable to” as opposed to “refusing to” provide documentation (ie they took, but did not save, a home-quick test).
Employee completes isolation
An employer may require the employee (who has tested positive for COVID-19) to take another test on or after the fifth day after the first positive test. The employer must provide such a sample at no cost to the employee. If the employee’s second test is negative, the employee can return to work if:
- symptoms are not present or disappear,
- they wear a face covering others through the 10th day after the positive test, and
- they avoid people who are immunocompromised or at high risk of serious illness through the 10th day after the positive test.
Three: The amount of leave
Full-time employees (40 hours)
An employee who is considered full-time OR an employee who has worked or was scheduled to work an average of at least 40 hours per week for the employer for the two weeks prior to the date on which the employee took COVID-19 supplementary paid sick leave.
Part-time employees (corresponding to average or normal working hours)
- Part-time employees with normal working hours are entitled to the total number of hours they are normally scheduled to work over a week.
- Part-time employees with variable working hours who have worked more than seven days are entitled to seven times the average number of hours they have worked each day for the past six months, or if they have worked less than six months, the total employment period.
- Part-time employees with variable working hours who have worked seven days or less are entitled to the total number of hours they have worked.
The total maximum amount an employee would be entitled to is 80 hours of additional paid sick leave between 1 January 2022 and 30 September 2022.
Four: Offsetting for prior supplementary paid leave
If an employee took another supplementary paid leave on or after January 1, 2022 for the same reasons as mentioned above and that leave was compensated with an amount equal to or greater than the compensation amount to which the employee would be entitled under this legislation, then the hours for the second paid holiday can be counted in the total number of hours to which an employee is entitled. under this legislation. For example, paid leave granted to employees under Cal / OSHA’s Emergency Temporary Standards exclusion pay or local supplementary paid sick leave orders may be included in the total supplementary leave available under this legislation.
Paid leave granted under Labor Code section 246 (California Paid Sick Leave) may not be used for compensatory purposes.
Five: Each hour of supplementary paid leave must be paid at the regular rate
Each hour of COVID-19 supplementary paid sick leave must be compensated at a rate corresponding to the following (this corresponds to, but not identical to, the tariff structures under section 246 of the Labor Act):
For non-exempt employees
Each hour of COVID-19 supplementary paid sick leave can be calculated as follows:
- in the same way as the normal wage rate for the working week in which the employee uses the sick leave, regardless of whether the employee actually works overtime during the working week in question or not.
- by dividing the employee’s total salary, excluding overtime premium payment, by the employee’s total working hours in the full pay periods for the preceding 90 days of employment, provided that for employees paid by piecework, commission or other method using all hours to determine the regular wage rate, it is divided total salary (not including overtime) with all hours to determine the correct rate.
For exempt employees
COVID-19 supplementary sick leave with pay is calculated in the same way as the employer calculates pay for other types of paid holiday.
Notwithstanding the above, an employer is not required to pay more than $ 511 per employee. day or $ 5,110 in total to a covered employee for COVID-19 supplementary paid sick leave taken by the covered employee.
A biological, adopted or foster child, stepchild, legal department or a child for whom the employee is in loco parentis. This definition of a child applies regardless of age or dependency status.
- children (as defined above);
- biological, adoptive or foster parent, stepparent or guardian of an employee or employee’s spouse or registered partner or a person who was in loco parentis when the employee was a minor child;
- registered domestic partner;
- grandchildren; or