HR Hot Topic – COVID-19 Sick Pay is Back!
On Wednesday, February 9, 2022, Governor Newsom signed into effect SB 114, which is intended to address issues that employers and employees continue to face as a result of the COVID-19 pandemic.
While the new COVID-19 supplemental paid sick leave law is currently in effect, employers have until February 19, 2022, before they have to begin providing the supplemental paid sick leave.
CA Paid Sick Leave Extension (SB 114)
SB 114 brings back the COVID-19 supplemental paid sick leave requirement for employers with 26 or more employees, but with a few slight changes. The supplemental paid sick leave must only be provided to employees who are unable to work or telework for COVID-related reasons. This COVID-19 supplemental paid sick leave requirement is retroactive to January 1, 2022, and will remain in effect until September 30, 2022.
Two Types of Leave
Under the third iteration of COVID-19 SPSL, two banks of leave will be available to employees who are unable to work or telework for various reasons as a result of COVID-19. One bank of up to 40 hours will be available if an employee or a family member tests positive for COVID-19. Employees will have another bank of up to 40 hours for all other covered reasons. These other covered reasons largely track the 2021 CA-SPSL, with a few expansions for caring for family members, which are underlined below:
- Quarantine or Isolation. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one quarantine or isolation order or guideline, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum time period under the order or guidelines that provides for the longest such minimum period.
- Advice from Health Care Provider. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
- Vaccination. The covered employee is attending an appointment for themselves or a family member to receive a vaccine for protection against contracting COVID-19.
- Vaccine Symptoms. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
- Symptoms. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a Family Member. The covered employee is caring for a family member, who is subject to an order or guidelines or who has been advised to self-quarantine.
- School Closure Due to COVID on Site. 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.
Amount of Leave
Like the 2021 version, employees who are considered full-time or work, on average, 40 hours per week, receive 40 hours of each type of leave, for a maximum of 80 hours of leave. Part-time employees receive a pro-rated version based on their regular schedule. Employees with variable schedules receive leave based on their average hours worked over up to a six month lookback period (depending on length of employment).
Employers Can Request Some Documentation and Require Testing
Employees may only take up to 24 hours of paid leave per vaccine/booster injection unless the employee provides verification from a health care provider that the covered individual is continuing to experience symptoms related to the vaccine or booster.
When employees take leave due to their own COVID-19 diagnosis, or to care for a family member with COVID-19, employers may require documentation of the COVID-19 positive individual’s test. If an employee refuses to provide documentation, the employer does not need to provide the leave. The nature of the documentation employers are able to require is unclear, and we await FAQs to provide some clarification.
In addition, if an employee tests positive, the employer may require the employee to submit to a diagnostic test on or after the fifth day and require documentation of results (but must make that test available at no cost to the employee).
Like the 2021 SPSL law, employers are required to issue retroactive payments to employees who took leave for a covered reason since January 1, 2022, upon written or verbal request by an employee. The retroactive payment has to be paid “on or before the payday for the next full pay period after the oral or written request of the covered employee.”
Wage Statement Requirement – List Amount of Leave Used
Instead of providing the available balance on wage statements (or written notices issued on pay day) as previous versions of the SPSL provisions required, employers now only need to list the amount of leave that has been used. If an employee has not yet used any leave, their statement must list “zero.”
Rate of Pay Aligns with Regular Paid Sick Leave
One new provision alleviates some of the administrative burden of determining the correct rate of pay. Under 2022 CA-SPSL, the rate of pay is the same as California’s regular paid sick leave under Labor Code Section 246. Leave is to be paid at the regular rate during the pay period taken, or with a 90 day lookback (or, for exempt employees, their typical pay). The $511/day cap remains.
No Cal/OSHA Earnings Continuation Relief
Unlike the 2021 CA-SPSL, an employer cannot require covered employees to exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide earnings continuation under the Cal/OSHA ETS. Employers cannot require any other type of leave to be used instead of, or before, 2022 CA-SPSL.
Who is paying for this?
At this time there is not a direct tax credit which will reimburse employers specifically for 2022 CA-SPSL costs. Employers should speak with a tax advisor to discuss options for general financial relief that may be available to some businesses.
Expect a new model poster to be published. This should be posted in the workplace and must be emailed to employees who do not frequent a workplace.
We will continue to provide information and guidance regarding HR-related news. Should you have any questions, please reach out to our Human Resources Department at 916-266-4370.
Sources: SB 114: Renewed COVID-19 Supplemental Paid Sick Leave Now in Effect