Key Takeaways

• On February 19, 2022, California Senate Bill (SB) 114 went into effect, requiring employers with 26 or more employees to provide those unable to work for COVID-19 reasons with supplemental paid sick leave, retroactive to January 1, 2022.

• While similar to California’s 2021 supplemental paid sick leave SB 95, the new law includes several differences, including the method of calculating sick leave pay rates.

• As of today, covered employers must be in compliance with SB 114 with an updated sick leave policy, a process for handling leave requests, and various employee notifications.

On February 19, 2022, California Gov. Gavin Newsom signed into law Senate Bill (SB) 114 requiring employers with 26 or more employees to provide employees unable to work for COVID-19 related reasons with up to 80 hours of additional supplemental paid sick leave. SB 114 went into effect on February 19, 2022, but its requirements apply retroactively to January 1, 2022, and expires on September 30, 2022. The California Department of Industrial Relations has also issued 2022 SPSL FAQs about the law.

In April 2021, California enacted SB 95 which required employers to provide supplemental paid sick leave to employees for various COVID-19 related reasons. However, SB 95 expired on September 30, 2021. SB 114 reinstates the supplemental paid sick leave under SB 95 but differs from SB 95 in several ways.

Covered Employers

Like SB 95 before it, SB 114 applies to employers with 26 or more employees. While employers with 25 or less employees do not need to comply with SB 114, they should be aware of local regulations as many cities and counties in California have enacted similar paid sick leave requirements for smaller employers.

Reasons for Leave

SB 114 provides for two separate banks of leave, each of up to 40 hours.

The first bank of COVID-19 Supplemental Paid Sick Leave is available to covered employees who are unable to work or telework due to any one of the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
• The employee or a qualifying family member is attending a vaccine appointment or experiencing vaccine-related side effects requiring care.

A “family member” is defined as a child; a biological, adoptive or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child; a spouse; a registered domestic partner; a grandparent; a grandchild; or a sibling.

The second bank of an additional 40 hours of leave is available only if an employee or a family member for whom they are providing care tested positive for COVID-19. Importantly, SB 114 expressly authorizes the employers to require proof of a positive test for themselves or their family members, whichever is applicable, stating “employer has no obligation to provide additional COVID-19 supplemental paid sick leave … for an employee who refuses to provide documentation of the results of the test … upon the request of the employer.”

Please note that while SB 114 expires on September 30, 2022, if an employee is using leave under SB 114 on September 30 and the absence would continue without interruption past September 30, the employee may continue using available SB 114 leave for the duration of that absence.

Limitations

If the leave is related to the COVID-19 vaccine or booster, then the employee is limited to a total supplemental paid sick leave of three (3) days or 24 hours for each vaccination or booster. They may be expanded beyond three days if the employee provides verification from a healthcare provider that the employee or the family member is continuing to experience symptoms related to the vaccine or booster.

Rate of Pay

Previously, SB 95 required employers to utilize the rate of pay that was the highest under several different calculations. SB 114 brings the method for calculating leave more in line with the methodology used for regular paid sick leave.

For nonexempt covered employees, each hour of supplemental paid sick leave must be calculated and compensated at a rate equal to one of the following:

• The employee’s regular rate of pay for the workweek in which the leave is taken.
• A rate 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 of 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, non-overtime wages shall be divided by all hours.

For exempt employees, the rate of pay for supplemental paid sick leave is to be calculated in the same manner as the employer calculates wages for other forms of paid leave.

Similar to SB 95, SB 114 caps the amount of leave required to be paid at $511.00 per day and $5,110.00 in the aggregate.

Employee Notice

Employers must display a poster explaining the nature of the supplemental paid sick leave law or email a copy to the employee if they do not have physical workplace. You can find a downloadable copy of the model notice online.

Covered employers must also provide notice in each covered employee’s wage statement showing the amount of available COVID-19 supplemental paid sick leave each pay period, as well as how much time has been used.

Recommendations

As of today, covered employers must be in compliance with SB 114. Accordingly, employers should immediately do the following if they have not already done so:

• Update sick leave policy.
• Contact payroll to confirm compliance with the paystub requirement.
• Check Labor Commissioner’s website for notice to distribute to employees.
• Have a process in place to handle leave requests, new and retroactive.

Note that there are special requirements for firefighters and certain in-home support services personnel which are not discussed in this article.

If you have any questions or concerns regarding compliance with SB 114, please contact:

• Stephen C. Mazzara
• Jacqueline K. Siegel
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Scott R. Green
• Or another member of our Employment and Labor group.