On February 9, 2022, Governor Newsom signed Senate Bill 114 into law, requiring employers with 26 or more employees to provide up to 80 hours of COVID-19 supplemental paid sick leave (“SPSL”) for qualifying COVID-19 related reasons. We reported on the companion SPSL bill, Assembly Bill 84, in our last legal update. AB 84 and SB 114 are virtually identical, but because Governor Newsom chose to sign SB 114 rather than AB 84, SB 114 is the relevant law. The bill can be viewed here.
Now that the bill has been signed, an employer’s obligation to provide the SPSL under this new law begins February 19, 2022. Once that obligation begins, it is retroactive to January 1, 2022. This means that upon a written or oral request by a covered employee, employers are required to issue retroactive SPSL payments to employees who took a COVID-19 leave for a qualifying reason on or after January 1, 2022.
As further detailed below, SB 114’s framework provides for two banks of leave: (1) up to 40 hours of SPSL to covered employees for a number of specific COVID-19-related absences; and (2) up to an additional 40 hours for covered employees who can show proof that they have tested positive for COVID-19, or that they are caring for a family member that has tested positive for COVID-19.
Below are the highlights of the new SPSL benefit.
SB 114 will become effective on February 19, 2022. Once effective, the benefits provided by SB 114 are retroactive to January 1, 2022. This means that upon a written or oral request by a covered employee, employers are required to issue retroactive SPSL payments to employees who took a COVID-19 leave for a qualifying reason on or after January 1, 2022. That retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request of the covered employee.
SB 114 benefits are set to expire on September 30, 2022, unless otherwise extended.
Under SB 114, all employers with 26 or more employees must provide paid sick leave for qualifying COVID-19 related reasons.
A covered employee under SB 114 is any employee who “is unable to work or telework” for any one of the qualifying uses listed in SB 114. This applies to both full and part-time employees, and there is no length of service requirement to be eligible for the SPSL entitlement.
A covered employee is entitled to SPSL if they are unable to work or telework due to any of the following seven reasons:
A "qualifying family member” is any of the following:
Full-time covered employees are entitled to two buckets of SPSL. The first bucket contains up to 40 hours of SPSL for any of the seven reasons listed above; the second bucket entitles covered employees to an additional 40 hours of SPSL if they show proof that they tested positive for COVID, or proof that a family member for whom they are providing care tested positive for COVID. There is no requirement that employees exhaust the first SPSL bucket before using the additional leave provided in the second SPSL bucket for testing positive, or caring for a family member that tests positive.
Note, however, that to be eligible for the second bucket of 40 hours of SPSL, employers may require documentation of the covered employee’s COVID-19 test results, or the test results of the family member for whom the employee is caring. Employers that require such proof must provide the test at no cost. The employer has no obligation to provide benefits from this second bucket of leave for an employee who refuses to provide documentation of the test results. Although the nature of the documentation an employer can request is unclear at the present time, we expect the Labor Commission to provide clarifying FAQs in the near future.
Part-time employees also are entitled to both buckets of SPSL. However, the amount of leave to which they are entitled under either bucket will be prorated based on their schedules.
For non-exempt employees, SPSL is calculated as follows:
Exempt employees are eligible for SPSL calculated in the same manner as the employer calculates wages for other forms of paid leave time.
SPSL is to be paid at the covered employees’ regular rate. This is capped at a maximum of $511 per day and $5,110 in the aggregate per covered employee.
Under certain circumstances, yes. If an employer has already paid a covered employee another benefit for leave taken for a qualifying COVID-19 reason on or after January 1, 2022, the employer can count the time it has already paid toward the number of hours of SPSL it must provide to employees under this new law. Note, however, that this offset is available only if the employee was paid an amount equal to or greater than the amount they would be entitled to under the new SPSL law. Moreover, this offset is not available if the prior paid sick leave was that to which the employee was already entitled under the state’s prior COVID-19 CSPSL, COVID-19 food sector supplemental paid sick leave, or standard mandatory sick leave taken pursuant to Labor Code 246.
Yes. Just like last year’s bill, the 2022 SPSL must appear as a separate line item on the employee’s itemized wage statement, or in a separate writing provided on the designated pay date. Note that the SPSL also must be separated from the employees’ regular California paid sick days or PTO benefits.
In a change from last year’s requirements, however, only the amount of SPSL that has been used by a covered employee must be listed. For example, if a covered employee used no SPSL in 2022, the statement should list zero hours used. If the employee has used 10 hours of SPSL in 2022, the statement should list 10 hours used.
Yes. The California Labor Commission is required to publish a model notice by February 16, 2022. This should be posted in a conspicuous place the workplace, and it must be emailed or mailed to employees that work remotely.
No. In a change from last year’s bill, SB 114 explicitly states that if Cal/OSHA exclusion pay is required, an employer cannot require covered employees to first exhaust their SPSL before providing paid leave under the Cal/OSHA exclusion pay requirements.
Recall that Cal/OSHA exclusion pay is only available if an employee is excluded from the employer’s workplace because of a workplace COVID-19 exposure. Cal/OSHA exclusion pay is not available if: (1) the COVID-19 exposure occurred outside of the workplace; (2) the employee can telework during the exclusion period; or (3) the employee is receiving State Disability Insurance payments from the EDD or Workers’ Compensation Temporary Disability Payments during the exclusion period. You can view more detailed information about Cal/OSHA exclusion pay here.
Because SB 114 is retroactive to January 1, 2022, covered employees can request SB 114 SPSL for any qualifying use on or after January 1, 2022.
If an employee took unpaid time off for a qualifying reason on or after January 1, 2022, the employee may request (orally or in writing) retroactive SPSL under SB 114. Upon receipt of the employee's request, the employer must issue a retroactive SPSL payment to the employee for the previously taken unpaid time off (so long as it was for a qualifying reason). The amount of hours retroactively paid would reduce the employee’s remaining allotment of SPSL accordingly.
Employers must make this retroactive payment on or before the payday for the next full pay period after the employee makes the request. The employee’s wage statement also must reflect the retroactive payment of SPSL.
At the present time, it appears that employers will have to absorb the costs associated with SB 114 SPSL. The state may provide employers with some form of tax offset, tax credit or other funding to defray the this financial burden in the future. What that will look like, however, remains to be seen. Employers should consult with their tax advisors regarding any tax credits that may be available.
Yes. SB 114 requires the Labor Commissioner to enforce SB 114 in the same manner that it enforces “paid sick days,” “paid sick leave,” or “sick leave” under existing law. We expect that the Labor Commissioner will issue FAQs on SB 114 shortly after the bill takes legal effect. Stay tuned!
For further information regarding COVID-19 benefits or other employment law issues, contact the attorneys at LightGabler.