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Return of Covid-19 Supplemental paid sick leave (SPSL) SB 114 – New Labor Code Section 248.6.

by | Feb 9, 2022 | Firm News |

On February 9, 2022, Governor Newsom signed into law SB 114, creating new Labor Code section 248.6.  This new law largely reinstates California’s 2021 Covid paid sick leave law  (CPSL) and requires eligible employers to provide potentially up to 80 hours of paid sick leave to employees in need of leave due to Covid.  Although SB 114 is similar to California’s previous CPSL, the laws are not identical.

When is the law effective?  The law takes effect immediately, but an employer’s obligation to provide the paid leave does not take effect until February 19, 2022.  However, as described below, the law is retroactive to January 1, 2022. The law is currently expected to expire on September 30, 2022.

Who are “Covered Employers?”  The new law applies to employers with “26 or more employees.”

Who are “Covered Employees?”  All employees are covered by the new law.  Additionally,  it allows employees to use leave to care for family members. Family member is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.

The New Law Is Retroactive to January 1, 2022:  Once the obligation to provide CPSL begins, the obligation will be retroactive to January 1, 2022. If an employee took leave dating back to the first of the year for one of the qualifying reasons that was either unpaid by the employer or not paid at the same level required by SB 114, the employee may make an oral or written request for retroactive payments. Retroactive payments must be paid on or before the payday for the next full pay period after the request is made.

SB 114 provides that an employer may require an employee to provide documentation of a positive test if the employee requests retroactive leave for a positive test or caring for a family member with a positive test.

What are the reasons/duration that employees can use leave?  The new law provides up to 80 hours of SPSL for full-time employees. However, AB 84 establishes two “categories” of up to 40 hours of leave for different purposes and with different requirements.

Category # 1 – Up to 40 Hours for COVID Qualifying Reasons

The first category of leave provides for up to 40 hours of CPSL for a number of COVID-19 related reasons. Leave must be provided if the employee is unable to work or telework for any of the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state, or local orders or guidance.
  • The employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
  • The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
  • The 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.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for a family member who is subject to an order or guidance described above or who has been advised to isolate or quarantine, as described above.
  • The 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.
  • Employee tests positive or is caring for a family member who tests positive, for COVID-19.

An employer may limit the total leave for vaccine or boosters to three days or 24 hours. If more leave is requested by the employee, the employer may require that an employee provide verification from a healthcare provider that the employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.  The potential three-day or 24-hour limitation applies to each vaccine or vaccine booster and includes the time used to obtain the vaccine or vaccine booster.

Category # 2 – Up to an Additional 40 Hours for Positive COVID-19 Tests

The second category of CPSL entitles an employee to the same amount of leave they qualified for under the first category (up to 40 hours) if the employee tests positive for COVID-19, or a family member for whom the employee is providing care tests positive for COVID-19.

The law  authorizes the employer to require proof of a positive test in such situations.

  • First, if the employee tested positive, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the initial test was taken and provide documentation of those results. SB 114 specifically states that the employer shall make such a test available at no cost to the employee.
  • Second, if the employee requests to use additional leave because a family member for whom they are providing care tests positive for COVID-19, the employer may require that the employee provide documentation of that family member’s test results before paying the additional leave.

SB 114 specifically provides that an “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.”

How do you calculate the amount of leave employees receive?

Full-Time Employees: Employees receive 40 hours (for each bank of leave) if either their employer considers them to work full time or, on average, they worked or were scheduled to work at least 40 hours per week in the two weeks preceding the date they took leave.

Part-time Employees or Those with Variable Schedules

  • If the employee has a normal weekly schedule, their eligible leave is the total number of hours the employee is normally scheduled to work for the employer over one week.
  • If the employee works a variable number of hours, they are entitled to seven times the average number of hours the employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation shall instead be made over the entire period the employee has worked for the employer.
  • If the employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, the employee is entitled to the total number of hours the covered employee has worked for that employer.

What “rate of pay” is used? 

For nonexempt employees, the regular rate of pay is determined by one of the following methods:

  • Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek; or
  • 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 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.

CPSL for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time. Like the prior law, the new legislation caps the amount of leave required to be paid at $511 per day and $5,110 in the aggregate.

How does CPSL interact with Cal/OSHA Exclusion Pay? An employer shall not require a covered employee to first exhaust their COVID-19 supplemental paid sick leave under this section before satisfying any requirement to provide paid leave for reasons related to COVID-19 under any Cal-OSHA COVID-19 Emergency Temporary Standards.”  The Legislature eliminated a previous provision that allowed the employer to require an employee to use SPSL before being obligated to pay exclusion pay under CAL/OSHA’s ETS.  This means employers may be required to provide significantly more paid time off for employees because employees who are excluded under Cal/OSHA’s ETS will be paid exclusion pay and maintain their full entitlement of SPSL.

What obligations are imposed on employees by the law?  Employees get to determine how many CPSL hours they need to use.  Employees must make an oral or written request to use leave.  While the law does not contain an obligation on the employee to provide verification or documentation to establish their need for leave, employees can use more than three days or 24 hours of CPSL to recover from the vaccine or booster if a health care provider verifies the person has continuing symptoms from a vaccine or booster. Additionally, employers can require employees to provide documentation of the test result when leave is used for situations where the employee or family member tests positive for COVID-19. If an employee refuses to provide documentation, the employer can deny leave.

Are there notice/paystub requirements?  Yes.  Employers are required to post a notice about CPSL similar to the notice employers post regarding regular paid sick leave under Labor Code Section 247.  The Labor Commissioner is required to develop a model poster within 7 days.

For paystubs, the legislation requires employers to list the amount of CPSL the employee has used through the applicable pay period. If an employee has not used any SPSL, the employer shall list zero hours on the paystub.  This is different than the 2021 CPSL, which required the employer to identify the total leave (80) available to an employee and/or how much leave the employee had left to utilize.

Are tax credits available for the employer?  No. Reports indicated the CA Legislature would include tax credits for employers to help pay for the CPSL.  The final law, however, does not provide any mechanism to assist employers forced to pay CPSL.  The law only reinstates some tax deductions and lifts a cap on tax credits some businesses may be able to utilize.

Action Items:

Prepare an updated policy

Plan for the paystub requirements

Look for the Labor Commissioner required poster

Create a process in place to address leave requests

Consider evaluating the number of retroactive or true-up payments you may need to make for individuals you already know were absent due to Covid