What employers need to know about California's new COVID-19 paid sick leave

Supplemental Paid Sick Leave for COVID is back!

As anticipated, on February 9, California Gov. Gavin Newsom (D) signed into law S.B. 114, which reinstates supplemental paid sick leave for covered employees and their family members related to COVID-19. 

Here are some FAQs.

When does the law take effect?

The new law applies retroactively to eligible absences that occurred beginning on January 1, and continuing through September 30.

Which employers are covered?

The new law applies to employers with 26 or more employees. Out-of-state employers are covered only if they have at least 26 employees in the State of California.

When must employers provide the paid leave?

Employers must provide the leave if an employee is unable to work or telework for any of the following reasons:

  • The employee must quarantine or isolate per an order or guidance from the California Department of Public Health, the Centers for Disease Control and Prevention, or a local public health officer where the workplace is located, or the employee is caring for a family member who is required to isolate or quarantine based on such an order or guidance.
  • The employee has been advised by a health care provider to isolate or quarantine because of COVID-19, or is caring for a family member who has been advised to isolate or quarantine.
  • The employee is attending his or her own appointment, or an appointment for a family member, to receive a COVID vaccine or booster shot.
  • The employee is experiencing symptoms related to a COVID vaccine or booster, or is caring for a family member who is experiencing symptoms.
  • The employee is experiencing symptoms of COVID and is seeking a medical diagnosis.
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID on the premises.

How much leave must employers provide?

Employees are entitled to 40 hours of COVID-19 supplemental paid sick leave if either (1) the employer considers the employee to work full time, or (2) the employee worked, or was scheduled to work, on average, at least 40 hours per week in the two weeks before the date on which leave was taken.

Employees who do not work full time, or who do not work on average 40 hours per week but have regular weekly schedules, are entitled to leave for the number of hours that they are normally scheduled to work in a week. For example, if an employee is usually scheduled to work 20 hours in a workweek, then the employee would be entitled to 20 hours of paid leave.

Employees who work variable hours are entitled to seven times the average number of hours worked each day in the six months preceding the date of the leave. For example, if an employee has worked an average of four hours per day in the six months before leave begins, she would be entitled to 28 hours of supplemental paid sick leave. The amount of leave for employees who have worked for at least seven days but less than six months would be based on their entire period of employment. Thus, for an employee who worked for the employer for only three months, the amount of leave would be calculated based on seven times the average amount of hours worked per day for the past three months.

Employees who have worked for the employer for fewer than seven days and who work variable hours are entitled to an amount of leave equal to the number of hours they have worked for the employer.

Covered employees may use their supplemental paid sick leave immediately, and may determine the number of hours to take, up to the total number of hours to which they are entitled. Employees taking leave for a COVID vaccination or booster are limited to three days or 24 hours, unless they provide verification from a health care provider that they or a family member are continuing to experience symptoms related to a vaccine or booster.

Please note that the legislation has different requirements for firefighters and in-home support/waiver personal care service providers.

Is additional leave required for employees who test positive for COVID?

Yes. If the employee, or a family member for whom the employee is providing care, tests positive for COVID, the employee may request up to 40 additional hours of paid sick leave. The number of additional hours is calculated using the same methods described above. Thus, employees may be entitled to a maximum of 80 hours of paid leave.

Employers may require employees who test positive to take another diagnostic test on the fifth day after the original test (or later), and to provide documentation of the test results. These follow-up tests must be provided at no cost to the employees.

If an employee requests additional leave to take care of a family member, the employer may require documentation of the family member’s positive test results before paying for the leave.

Employers are not required to provide additional leave to employees who refuse to provide documentation of the positive test results for themselves or their family members.

What about Labor Code Section 246?

Labor Code Section 246, also known as the California Paid Sick Leave Law, generally requires employers to provide and allow employees to use at least 24 hours, or three days, of paid sick leave per year. The COVID paid supplemental sick leave must be provided in addition to the leave to which an employee may be entitled under Section 246.

How does the retroactivity work?

Employers must provide retroactive payment of supplemental paid sick leave under the following conditions:

  • The employee took time off for a reason that would have qualified for supplemental paid sick leave,
  • The time was taken on or after January 1,
  • The employer did not compensate the employee in an amount equal to or greater than the compensation required under the new law, and
  • The employee makes an oral or written request for payment.

The retroactive payment must be issued on or before the payday for the next full pay period after the employee makes the request. Retroactively paid hours count against the employee’s total supplemental paid sick leave benefit.

If the employer did pay for the leave before the new legislation was enacted, the employer can count the hours toward the employee's total hours of supplemental paid sick leave upon a written or oral request from the employee.

Anything else?

S.B. 114 includes other provisions, such as calculating the rate of pay for supplemental paid sick leave, a cap on the amount of pay employers are required to provide, and posting and wage statement requirements. In addition, as noted above, the legislation has special provisions for firefighters and in-home support/waiver personal care service providers.

What should employers do now?

Employers with employees in California should determine whether there are employees who took leave on or after January 1 and, if so, the amount of retroactive paid leave they may be required to provide. Of course, employers should also adopt policies addressing their S.B. 114 obligations and comply with the legislation's posting requirements once the state Labor Commissioner makes a poster available. Employers are encouraged to seek guidance from competent legal counsel.

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