On February 9, 2022, Governor Newsom signed legislation, Senate Bill (SB) 114 creating Labor Code section 248.6, into law which reinstates supplemental paid sick leave in California, effective immediately. Supplemental paid sick leave applies retroactively to January 1, 2022, and extends through September 30, 2022. Employers’ obligation to provide the supplemental paid sick leave begins February 19, 2022.
Under the new Labor Code, section 248.6, which applies to employers with 26 or more employees, employers must provide COVID-19 supplemental paid sick leave (“CSPS”) to employees who are unable to work or telework due to obtaining a COVID-19 vaccine or vaccine booster appointment for themselves or a family member (child, grandchild, grandparent, parent, sibling or spouse), or are experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster.
Full time employees (employees who work 40 hours a week or are considered full time by the employer) are entitled to up to 80 hours of CSPS in two separate banks of leave: (1) up to 40 hours if an employee tests positive for or is caring for a family member who tests positive for COVID-19; and (2) up to 40 hours for quarantine or isolation, vaccination or booster appointments, recovering from the effects of vaccination or boosters, experiencing COVID-19 symptoms and seeking medical diagnosis, and closure of schools or child care due to COVID-19 at the school or child care facility.
Employers may require employees testing positive for COVID-19 to test again on or after the fifth day after the first positive test and provide documentation of those results. Employers may also require employees to provide documentation of a family member’s test result before paying the additional COVID-19 supplemental paid sick leave, as applicable. If an employee refuses to provide documentation of a test result, CSPS may be denied.
The total number of hours of CSPS is in addition to any paid sick leave available to employees under the Healthy Workplaces, Healthy Families Act of 2014 (“HWHFA”), and in addition to their prior entitlement to COVID-19 supplemental paid sick leave.
The Labor Commissioner will enforce these COVID-19 supplemental paid sick leave provisions, and publish a model notice relating to COVID-19 supplemental paid sick leave, which employers must post in the workplace, but may email to employees who do not regularly visit the workplace.
COVID-19 supplemental paid sick leave applies to specified in-home supportive service providers and waiver personal care service providers, who are unable to work due to certain reasons related to COVID-19. Under the new law, a provider would be entitled to COVID-19 supplemental paid leave for the same reasons as a covered employee. The law entitles a provider to up to 40 hours of COVID-19 supplemental paid leave if the provider worked or was scheduled to work, on average, at least 40 hours per week, as specified, or met certain other work conditions, and entitles a provider to take additional COVID-19 supplemental paid sick leave under specified conditions. The State Department of Social Services and the State Department of Health Care Services are to implement, interpret, or make these provisions specific by means of all-county letters or similar instructions, without taking any regulatory action.
With respect to covered employees, in-home supportive service providers, and personal waiver care service providers, COVID-19 supplemental paid sick leave is to take effect 10 days after the date of enactment of the law and applies retroactively to January 1, 2022, through September 30, 2022.
CSPS must be paid as under the following circumstances:
- An employee must quarantine or isolate due to COVID-19 per an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace. (If subject to more than one order, the employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period.)
- An employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
- An employee attends an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19
- An employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.
- Employees may be limited to 3 days or 24 hours for each vaccination or vaccine booster unless the employee provides verification from a health care provider that the employee or family member is continuing to experience COVID-19 symptoms and is seeking a medical diagnosis.
- An employee is caring for a family member who is subject to an order or guidance or has been advised to isolate or quarantine.
- An 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.
Calculating the Number of Hours of Supplemental Paid Sick Leave
Full time employees, either working 40 hours a week or who are considered full time employees by the employer, are entitled to 40 hours of COVID-19 supplemental paid sick leave for both banks of leave, including employees who worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave.
Part-time employees with a normal weekly schedule are entitled to supplemental sick leave for the total number of hours the employee is normally scheduled to work over a week. Part-time employees working a variable schedule are entitled to receive supplemental paid sick leave equal to the number of hours they are normally scheduled to work over a week.
Employees with a normal weekly schedule are entitled to the total number of hours they are normally scheduled to work over one (1) week for each bank of leave. Employees who work a variable number of hours and whose has worked for the employer for six (6) months or more receive seven (7) times the average number of hours they worked each day in the six (6) months preceding their leave date for both leave banks. For employees working between eight (8) days and six (6) months, the same calculation applies over the employee’s entire period of employment. Employees working 7 days or less receive hours equal to the total number of hours worked for both leave banks.
Employee Obligation to Provide Test Results
If an employee tests positive for COVID-19, employers may require the employee to submit to a diagnostic test on or after the fifth day after the test was taken and provide documentation of those results. Employers must make the test available at no cost to the employee.
If an employee requests additional leave because a family member for whom they are providing care tests positive for COVID-19, employers also may require proof of the family member’s test results before paying the additional leave.
If an employee refuses to provide documentation of his or her test results or of the family member’s test results, as applicable, employers may deny the employee’s requested leave.
Interaction With Other Leave
Supplemental paid sick leave does not diminish an employers obligations under Cal-OSHA to provide exclusion pay to employees excluded from work due to a close contact with COVID-19 positive case in the workplace or any other requirements of Cal-OSHA COVID-19 Emergency Temporary Standards.
When to Pay CSPS
CSPS should be made available for immediate use if an employee makes an oral or written request for CSPS.
How to Calculate Pay
Nonexempt (hourly) employees must be paid their regular rate of pay for the workweeks in which they use paid sick time, whether or not the employees actually work overtime in those workweeks. CSPS is calculated by dividing an hourly 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.
Exempt employees (salaried employees) should be paid CSPS in the same manner as the employer calculates wages for other forms of paid leave time.
Pay is capped for all employees at five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) per employee. However, if the cap is met, employees may use other available paid leave to fully compensate the employees for leave taken. Under no circumstances should an employee be required to use any other paid or unpaid leave, paid time off, or vacation time before using CSPS, or required to use CSPS in place of exclusion pay, when appropriate under Cal-OSHA’s COVID-19 Emergency Temporary Standards, including, but not limited to, Sections 3205 to 3205.4, inclusive, of Title 8 of the California Code of Regulations or the Cal-OSHA Aerosol Transmissible Diseases Standard at Section 5199 of Title 8 of the California Code of Regulations.
If an employee was paid another supplemental benefit for leave taken on or after January 1, 2022, in an amount equal to or greater than the amount of compensation for CSPS to which the employee is entitled, the hours may count toward the other paid benefit or COVID-19 supplemental paid sick leave that the employer is required to provide to the covered employee.
As an added nuance to the newly enacted CSPS, if an employee was paid an amount equal to or greater than what 2022 CSPS requires, and the employee requests that 2022 CSPS be applied to the prior absence, the employee should be credited with the 2022 CSPS for that absence, instead of using the benefit that was applied to the absence. For example, if an employee used paid sick leave under California’s HWHFA mandatory sick leave law for COVID related time off, the employee may ask to have his or her sick days reinstated and instead have the hours credited against the appropriate bank of CSPS hours.
Reporting CSPS on Pay Stubs
The amount of CSPS used must be reported on paystubs or in writing on paydays. Paystub requirements are enforceable for the next full pay period following February 19, 2022. After February 19, 2022, CSPS and pre-COVID statutory paid sick leave must be displayed separately, and retroactive payments must be reflected on the paystubs for the pay periods during which payments are made.
Notices and Postings
A poster published by the Labor Commission summarizing employees’ CSPS rights must be displayed where employees can easily read it. If employees do not frequent the workplace, the poster may be emailed. A copy of the mandated posting may be obtained at https://www.dir.ca.gov/dlse/COVID19resources/2022-COVID-19-SPSL-Poster.pdf.
We have a dedicated team that can answer workplace related COVID-19 questions and assist with drafting policies and procedures mandated by the CSPS, and are monitoring developments in this area as they occur. If you have any questions or need assistance, please contact us.