New COVID-19 Paid Sick Leave: What It Means For Employers

California Governor Gavin Newson and the State Legislature have renewed COVID-19 related paid sick leave, which expired September 30, 2021. On February 9, 2022, the Governor signed Senate Bill 114 (SB 114) into law and added as Labor Code sections 248.7 and 248.7.  

SB 114 provides COVID–19 supplemental paid sick leave (CPSL) for employees covered under its provisions who are unable to work or telecommute from January 1, 2022 through September 30, 2022, for enumerated COVID-19 reasons. The law takes effect on February 19, 2022 and applies retroactively back to January 1, 2022.  

This article summarizes how the new law affects employers generally, as provided under Section 248.6 (it excludes discussion about provisions relating to firefighters, and providers of in-home personal care services under Labor Code Section 248.7).  

The Basics 

  • CPSL applies to private employers with 26 or more employees and public entities in California 
  • Employees may seek CPSL retroactively from January 1, 2022, beginning on February 19, 2022 
  • Employers cannot require employees to use other available paid sick leave or other paid time off.  Employees determine how many CPSL hours they need, subject to some limitations described below
  • Similar to earlier COVID-19 paid sick leave, the maximum CPSL is $511 per day and $5,110 in total.  However, employees can elect to use other available paid leave to make up any difference from this maximum and their regular pay 
  • Establishes two separate banks of CPSL of up to 40 hours each for full-time covered employees (a collective maximum of up to 80 hours), and a proportionate amount for other employees. The first bank of time applies to a covered employee who is unable to work or telecommute for the following reasons: 
    • The employee is subject to a quarantine or isolation order related to  COVID-19 required by an order or guidance of state, federal or local health authorities with jurisdiction over the workplace  
    • The employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19  
    • The employee is attending an appointment for him or her, or a family member, to receive a COVID-19 vaccine or vaccine booster  
    • The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster that prevents the employee from being able to work or telecommute
    • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis 
    • The employee is caring for a family member subject to a quarantine or isolation order or guidance, or who has been advised to self-quarantine or isolate by a health care provider due to COVID-19 concerns
    • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for COVID-19 related reasons
  • second bank of time of CPSL of up to 40 hours of time exists and applies to employees who test positive, or are caring for a family member who tests positive, for COVID-19 
  • Family Member means a child, parent, spouse, domestic partner, grandparents, grandchild or sibling.  

Permissible Requests for Diagnostic Test Results 

When an employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19 and requests CPSL, the employer may require the employee to take another diagnostic test on or after the 5th day after the first test was taken and provide the employer with the test result.  

This second test must be made available to the employee at no cost to the employee. Likewise, if the employee applies for CPSL to care for a family member who tests positive, the employer may require documentation of that family member’s test results before paying the additional leave. If the employee refuses to provide such test results, the employer can deny the CPSL leave for the additional second bank of CPSL leave. 

Further, for each leave taken for symptoms caused by a COVID-19 vaccine or booster, the employer may limit CPSL to 3 days or 24 hours. However, this time may be extended if the employee provides the employer with a verification from a health care provider that the employee or family member continues to have symptoms related to a COVID-19 vaccine or booster.  

How to Calculate Amount of Leave

Full-Time Employees:  An employee is full-time when: 

(i) The employer considers the employee to be working full time, or 

(ii) the employee was scheduled to work, or worked, on average at least forty (40) hours per week in the two weeks preceding the date the employee took CPSL.

  • Part Time Employees:  If an employee does not satisfy the above criteria, then they are entitled to CPSL as follows: Employees with a normal weekly schedule will be entitled to the total number of hours normally scheduled to work for the employer over one week for each bank of CPSL.
  • If an employee works a variable number of hours, the amount of CPSL will equal seven (7) times the average number of hours the employee worked each day in the preceding 6 months before the leave date.
  • If the employee worked for less than six (6) months, but more than seven (7) days for the employer, the calculation of CPSL will instead be made over the entire period the employee worked for the employer. 
  • If the employee works a variable number of hours and worked for the employer for seven (7) days or less, the number of hours of CPSL will be the number of hours that the employee worked for the employer.

CPSL Leaves Taken Must Be Reported as CPSL Hours Used On Each Pay Stub

  • Beginning the next full pay period following February 19, 2022,CPSL and other sick leave used must be displayed separately on employee pay stubs, and retroactive payments must be displayed on pay stubs for the period during which payments are made.  If no CPSL was used during the payroll period, then the pay stubs should display zero hours. 
  • Employers should verify with their payroll departments, or with outside payroll vendors, that these new pay stub requirements are known and will be followed.

Notice Requirements

  • Employers must post in a conspicuous location in the workplace, and disseminate by electronic means to employees who do not frequent the workplace, the new CPSL requirements and rights. The Department of Industrial Relations (Labor Commissioner) is required to make a model poster publicly available by February 16, 2022.  

Miscellaneous Rules

  • Employers cannot require employees to first exhaust their CPSL before satisfying any requirement to provide paid sick leave related to COVID-19 under any CAL-OSHA COVID-19 Emergency Temporary Standard.
  • If an employee has already received paid time off for a COVID-19-qualified reason, since January 1, 2022 and before February 19, the employee is entitled to be credited back any paid time off, vacation time or other paid sick leave that the employee received.  Similarly, if the employee did not receive paid sick leave for work time missed because of a qualified reason between January 1 and February 19, the employee will be entitled to receive such CPSL now.
  • Unlike last year’s legislation, no provision allows for employers to apply for tax credits for CPSL payments made to employees.

We expect employees will be seeking to utilize COVID-19 supplemental sick pay leave now, and employers need to become acquainted with its provisions and seek appropriate counsel to ensure compliance with the upcoming exercise of these new employee rights.

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