In a development that will sound familiar to employers, California has reinstated the requirement, which had expired last fall, to make available to employees up to 80 hours of COVID-19 supplemental paid sick leave (“Supplemental Sick Leave”).  The new measure, Senate Bill (“SB”) 114, was signed by Governor Newsom on February 9, 2022, and the requirement to provide the new sick leave went into effect on February 19. Employees may use the new sick leave retroactive to January 1, 2022.

New Supplemental Sick Leave Requirements

Following is an overview of the new and more expansive requirements under SB 114, which applies to employers with more than 25 employees.

Hours of Leave.  Full-time employees are entitled to up to 80 total hours of Supplemental Sick Leave for specified reasons and divided into two 40-hour buckets, described below.  Part-time employees are entitled to prorated leave equivalent to either their typical hours worked in a week, or seven multiplied by the average number of hours they have worked each day in the last six months.

The two buckets of leave are as follows:

First, full-time employees may use up to 40 hours of Supplemental Sick Leave when they are unable to work or telework for any of these reasons:

  1. The employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the California Department of Public Health, the U.S. Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace (if the employee is subject to more than one order/guideline, the employee may use Supplemental Sick Leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period);
  2. The employee has been advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19;
  3. The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster;
  4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework (an employee may only take up to three days (or 24 hours of leave) for each vaccination or booster, unless an employee provides verification from a health care provider that the employee or family member is continuing to experience symptoms);
  5. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  6. The employee is caring for a family member who is subject to an order or guidance described in qualifying reason (1), or has been advised to self-quarantine or isolate as described in qualifying reason (2); or
  7. 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.

Second, full-time employees are entitled to an additional 40 hours of Supplemental Sick Leave if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19.  Employers cannot require that employees exhaust the first 40-hour bucket of leave before using this more restricted bucket.  For an employee who tested positive, the employer can require that the employee submit to an employer-provided diagnostic test on or after the fifth day after the employee first tested positive, and provided documentation of that result, although the employer must pay for the test.  When an employee requests leave because a family member tested positive, the employer can require documentation of the positive test result.  If an employee fails to provide the requested documentation for either the employee or family member, the employer can deny the leave.

Supplemental Sick Leave requirements only remain in effect through September 30, 2022. However, if an employee is using Supplemental Sick Leave on September 30, that employee may continue to use any available Supplemental Sick Leave until that particular leave ends.

Compensation. SB 114 requires employers to compensate non-exempt employees for Supplemental Sick Leave either (a) at the regular rate of pay the employee would be entitled to for the particular workweek (regardless of whether the employee has worked overtime in that week), or (b) the quotient of the employee’s total wages divided by total non-overtime hours worked, each total based on the full pay periods occurring within the 90 days prior the employee’s leave.  For exempt employees, compensation is calculated in the same manner as an employer calculates wages for other forms of paid leave.  Supplemental Sick Leave caps at $511 per day, or $5,110 in total.

No Requirement to Exhaust.  An employer may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses the new Supplemental Sick Leave.  However, an employer that voluntarily provides COVID-19 leave for a qualifying reason may receive a credit toward the requirements to the new Supplemental Sick Leave.  Furthermore, in a departure from prior supplemental sick leave rules, the new law specifies that an employer may not require an employee to exhaust their Supplemental Sick Leave before the employer provides any required exclusion pay under the Cal-OSHA COVID-19 Emergency Temporary Standards.

Written Notice to Employees.  Starting with the first full pay period following February 19, 2022, employers are required to provide employees with written notice regarding how much Supplemental Sick Leave they have used in a pay period.  This can be done on an employee’s wage statement or through a separate statement provided on designated pay dates.  For pay periods where an employee uses no Supplemental Sick Leave, an employer must list zero hours.

Employers also are required to display a poster explaining the Supplemental Sick Leave.  The poster is available on the Labor Commissioner’s website.

Retroactive Designation.  Given that SB 114 applies retroactively, employers should consider whether any employees who took leave between January 1, 2022 and February 19, 2022 would qualify for Supplemental Sick Leave.  If an employee would have qualified but did not receive compensation equal to or greater than compensation required under SB 114, the employer must provide retroactive compensation upon an “oral or written” request by the employee.  If an employee would have qualified, and did receive compensation equal to or greater than compensation required under the new law, the employee can request that those leave hours be attributed to Supplemental Sick Leave.

Compliance Steps for Employers

Employers should immediately review their sick leave policies and update their wage statements to ensure they are in alignment with the new law.  Employers also should not rely on previous advice or guidance they received regarding application of the prior supplemental sick leave law, as the new law contains some differences.  The Labor Commissioner has published helpful FAQs on the new law, available here.

Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

Photo of Zachary Agudelo Zachary Agudelo

Zach Agudelo is an associate in the firm’s Washington, DC office. He is a member of both the Employment and Employee Benefits and Executive Compensation Practice Groups.