Update Applicable to:
All employers with more than 25 employees in the state of California

What happened?
In our previous communication, we informed you about the reinstatement of California’s COVID-19 Supplemental Paid Sick Leave (SPSL). This is an update on that communication.

What are the details?
On February 9, 2022, Governor Gavin Newsom signed Senate Bill 114 (SB 114), resurrecting the COVID-19 SPSL for 2022.

Effective February 19, 2022, employers with more than 25 employees must provide leave to covered employees under the latest edition of SPSL until September 30, 2022. The statute applies retroactively to January 1, 2022.

A covered employee is defined as an employee of a covered employer who cannot work or telework because of covered reasons. Because of this, there is no length of service requirement.

SB 114 creates two separate buckets of SPSL. Under the first bucket, employees can use SPSL for the following list of covered reasons:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
2. The covered employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
3. The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
4. The covered employee is 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 telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
7. The covered 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.

A full-time covered employee is entitled to 40 hours of SPSL under this bucket. A part-time covered employee is entitled to an amount of SPSL equal to the total number of hours the employee is normally scheduled to work in one week. Lastly, an employee that works a variable number of hours is entitled to seven times the average number of hours the employee worked for the employer over a six-month period.

While the first bucket of SPSL covers time off for vaccination, including booster vaccines, employers may limit SPSL for symptoms resulting from each vaccination or booster to three days or 24 hours unless the employee provides verification from a healthcare provider that the employee (or their family member) is continuing to experience adverse symptoms. This does not impact the total amount of SPSL an employee is entitled to under the first bucket.

In addition to the reasons covered under the first bucket, covered employees are entitled to additional SPSL only if the employee or family member for whom the employee is caring for tests positive for COVID-19. If the employee or a family member for whom they are providing care tests positive for COVID-19, the employee is entitled to the same amount of SPSL that they are entitled to under the first bucket (for instance, a full-time employee would be entitled to an additional 40 hours). Employers are permitted to require documentation of a positive test result from either the employee or the family member for whom they are providing care before providing the additional leave.

The maximum amount of SPSL a full-time employee can take during the period from January 1 to September 30, 2022, is 80 hours. If an employee is eligible for exclusion pay under the Cal/OSHA Emergency Temporary Standard, SPSL hours cannot be used to offset any exclusion pay obligation.

Non-exempt employees shall be compensated based on one of the following:

• Calculated in the same manner as the regular rate of pay for the workweek in which the employees use SPSL.
• Calculated by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay periods of the prior 90 days worked.

SPSL for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave. An employer shall not be required to pay more than $511 per day and $5,110.00 in aggregate to a covered employee.

Employers must provide employees with written notice that sets forth the amount of SPSL the employee has used through the pay period in which it was due on either the employee’s itemized wage statement or in a separate written document provided on the designated pay date. The employer shall list zero-hours used if a worker has not used any SPSL.

Employers are also required to post a notice developed by the Labor Commissioner about this new SPSL benefit. If an employer’s covered employees do not frequent a workplace, the employer may satisfy this requirement by disseminating the notice through electronic means, such as email.

For more information, please see the links below:

Senate Bill 114 (SB 114) 

Article 1 – Article 2

What do employers need to do?
Employers should review the links provided above and should implement the COVID-19 SPSL requirements to stay in compliance with the new law.

This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.