Key Points

• Employees again are entitled to up to 80 hours of employer-paid sick leave for COVID-related absences through September 30, 2022, retroactive from January 1, 2022
• Vaccine related absences are now covered absences for entitlement to paid sick leave
• In certain instances, employers may require employees to provide documentation of COVID test results for themselves or family members in order to receive the paid sick leave

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On February 9, 2022, Governor Newsom signed Senate Bill 114 (SB 114), which creates new paid sick leave mandates in Labor Code section 248.6. The law takes effect immediately, but an employer’s obligation to provide 2022 COVID-19 supplemental paid sick leave does not begin until 10 days after the Governor signed the bill: February 19, 2022. Importantly, the law is retroactive to January 1, 2022. Employers have been expecting this development since California’s Supplemental COVID-19 Sick Leave program ended in September 2021.

The employer’s obligation to provide the 2022 sick leave remains in effect through September 30, 2022. Similar to the 2021 supplemental sick leave law (SB 95), if an employee is using SB 114 sick leave on September 30, 2022, the employee may continue to access his/her remaining, available paid sick leave past September 30 for that absence.

Brief Summary of the 2022 SB 114

SB 114 is similar to, but not exactly the same as, California’s 2021 Supplemental COVID Sick Leave law—known as SB 95.

The new SB114 applies to employers with 26 or more employees and to a number of public entities and covers all employees of those employers. It allows employees to use leave to care for themselves and for family members. A family member includes a child, a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, grandchild, grandparent, parent, sibling, or spouse.

Firefighter employers need to check for special rules related to calculating hours of work as do in-home supportive and waiver personal care services providers with respect to use of leave as some provisions vary from those for the general employer population.

The apparent purpose of SB 114—by enlarging the types of situations for which an employee can access paid sick leave—is to address the time employees are now taking for vaccine-related absences for themselves or family members.

1. Permitted Uses of Paid Sick Leave

   Employees may use SB 114 leave if the employee is "unable to work or telework" for 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.
   • Advised by a health care provider to quarantine or isolate due to COVID-19,
   • or a family member is, attending an appointment to receive a COVID-19 vaccine or booster,
   • or caring for a family member who is experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework.
   • Experiencing COVID-19 symptoms and seeking a medical diagnosis.
   • Caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to self-quarantine or isolate by a health care provider due to concerns related to COVID-19.
   • Caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
2. Amount of Sick Leave Available: Hours and Pay

   The maximum amount of SB 114 paid sick leave hours that an employer must provide to an employee is allocated differently than the 2021 COVID supplemental sick leave amount. Now, full-time employees are eligible to take up to 80 hours in the following manner:

   • Leave up to 40-hours is available if the employee tests positive for, or is caring for a family member who tests positive for, COVID-19 (the employer may require documentation regarding tests results before paying the leave time).
   • Leave up to 40-hours is available for the other enumerated covered reasons (such as quarantine, vaccine appointments, school closures, etc.) except that the employer may limit time off for a COVID-19 vaccine or booster shot to three days or 24 hours unless a health care provider verifies the individual continues to experience symptoms.

   As before, an employer’s obligation to provide paid COVID sick leave for its part-time employees is calculated based upon the employee’s work hours. Weekly scheduled employees receive the total number of hours they are normally scheduled to work in one workweek. Employees with a variable number of hours and whose tenure is six months or more receive seven times the average number of hours they worked each day in the six months preceding their leave request date. If they have worked more than seven days but fewer than six months, employers use this same calculation but over the employee’s entire employment time. Employees who have worked seven or fewer days receive leave hours equal to the total number of hours worked. These part-time calculations presumably apply to the two separate leave buckets.

   Of course, it should go without saying that these COVID paid sick leave hours are in addition to any paid sick leave that may be available to the employee under Section 246—California’s mandatory sick leave law. The law also provides that an employer “shall not require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.”

   Similar to the 2021 paid sick leave law, employers pay their employees no more than $511 for each day an employee uses the sick leave and no more than $5,110 overall. For a non-exempt employee, the amount is calculated by using the employee’s “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.” The amount of paid sick leave for exempt employees “shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.”

3. Other Considerations

   Cal/OSHA: If an employer excludes an employee from the workplace due to COVID-19 exposure, the employer cannot require an employee to first exhaust his/her SB 114 paid sick leave.

   Offsets: Similar to the 2021 law, if an employer provides and pays an employee leave on or after January 1, 2022 based upon an employer policy for SB114 reasons in an amount equal to or greater than the amount of pay the law requires, an employer may count those hours toward the 2022 sick leave requirement.

   Paystubs: Employers must show the paid sick leave hours that an employee uses on the employee’s paystub. “The employer shall list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.” This is a welcome change from the prior law, which required employers to show the amount of sick leave available.

   Postings: The law provides that “by seven days after the date of enactment of this section—February 9—the Labor Commissioner shall make publicly available a model notice for purposes of Section 247.” Notably in recognition of the large amount of employees still working remotely, the law further provides that “[o]nly for purposes of COVID-19 supplemental paid sick leave, if an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement of subdivision (a) of Section 247 by disseminating notice through electronic means, such as by electronic mail.” Employers should monitor the Department of Industrial Relations website for the Notice. See https://www.dir.ca.gov/dlse/. We will be doing so as well and will have the Notice available as soon as it is released.

Conclusion

Given that this law is a new provision of the Labor Code, non-compliance with certain provisions exposes employers to PAGA and other claims. Keep in mind that if you are doing business in local jurisdictions that have their own sick leave entitlements, you should be checking local ordinances as well. Finally, this new law is retroactive to January 1, 2022, so be prepared to address employee requests seeking to recoup either unpaid time or time from their vacation or sick leave banks that they used in 2022 for the reasons provided in SB 114. Feel free to consult with your Hanson Bridgett attorney about this new sick leave law to assure that you are compliant with the posting, paystub, pay and hours requirements.