California Education Employers Are Subject to New COVID Sick Leave Law
Update: California’s Department of Industrial Relations has updated its website to include FAQs about the 2022 COVID-19 Supplemental Paid Sick Leave (https://www.dir.ca.gov/dlse/COVID19Resources/2022-SPSL-FAQs.html), as well as copies of the model notices (in English and Spanish) that employers are required to post in the workplace.
On February 9, 2022, the Governor signed into law Senate Bill 114 (“SB 114”), requiring employers with 26 or more employees, including K-12 and community college districts, to provide up to 80 hours of COVID-19 supplemental paid sick leave (“SPSL”) to employees. SB 114 takes effect 10 days after its enactment, i.e., February 19, 2022. The law is effective retroactive to January 1, 2022, and will expire on September 30, 2022.
Though the provisions of SB 114 are similar to the 2021 COVID-19 supplemental sick leave (SB 95) that expired on September 30, 2021, there are important differences in the new legislation. Public school employers will need to update their policies on pandemic and/or state paid sick leave, review SB 114 requirements alongside existing leave rights that may have been negotiated into MOUs, and develop protocols to begin administering this new bank of leave.
Qualifying Reasons to Use Leave
Employers must provide SPSL to a covered employee, i.e., an employee who is unable to work or telework, due to any of the following reasons:
- The employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace. If the employee is subject to more than one quarantine or isolation period, the employee shall be permitted to use supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period.
- The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
- The employee is attending an appointment for themselves or a specified family member to receive a vaccine or a vaccine booster for protection against COVID-19
- The employee is experiencing symptoms, or caring for a specified family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for a specified family member who is subject to an order or guidance described in subparagraph (1) above or who has been advised to isolate or quarantine, as described in subparagraph (2) above.
- The employee is caring for their child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
For purposes of SB 114, “family member” and “child” have the same definitions as apply for existing “kin care” leave pursuant to Labor Code 233, and includes: child (including biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. regardless of age or dependency status); parent (including biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child); spouse; registered domestic partner; grandparent; grandchild; sibling.
Amount of Leave
Full-time employees are entitled to 40 hours of SPSL. Part-time workers are entitled to a prorated amount of SPSL. Specifically, part-time employees with a normal weekly schedule are entitled to the total number of hours they are normally scheduled to work over one week. If a part-time employee works a variable number of hours, the employee is entitled to seven times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took SPSL; if the employee has worked for the employer fewer than six months but more than seven days, the calculation is made over the entire period the covered employee has worked for the employer. If the part-time employee works variable hours and has worked for the employer seven days or fewer, the employee is entitled to the total number of hours the employee has worked for the employer.
Additionally, SB 114 provides that when leave is taken for symptoms due to vaccination, an employer may limit the total supplemental sick leave to 3 days or 24 hours, unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster. Moreover, the 3-day or 24-hour limitation includes the supplemental sick leave time used to obtain the vaccine or vaccine booster.
Additional Leave Available
A full-time covered employee is entitled to an additional SPSL, up to 40 hours (prorated for part-time), if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. If the employee tested positive, an employer may require the employee to submit to an employer-provided test on or after the fifth day after the initial test was taken and to provide documentation of those results. If the employee requests to use additional leave to care for a family member who has tested positive for COVID-19, the employer may require the employee to provide documentation of the family member’s test results before paying the additional leave. The employer is not obligated to provide additional SPSL for an employee who refuses to provide documentation of the test results.
The total maximum amount of SPSL a covered employee is entitled to shall not exceed 80 hours for the period between January 1, 2022, and September 30, 2022.
For non-exempt employees, each hour of SPSL shall be compensated by calculating either:
- The employee’s regular rate of pay for the workweek in which the employee uses the SPSL, regardless of whether the employee actually works overtime in that workweek.
- Dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. For nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, the total wages not including overtime premium pay shall be divided by all hours.
For all employees, SB 114 caps SPSL pay at $511 per day and $5,110 in the aggregate, unless federal legislation is enacted that increases these amounts. However, employees who reach the maximum dollar amount may use other available paid leave concurrently to supplement SPSL so that the employee receives their normal pay rate.
Interaction with Other Paid Leave
As with the 2021 COVID-19 supplemental paid sick leave, an employer may not require an employee to use other paid or unpaid leave, including vacation, before using SPSL. Additionally, an employer may not require an employee to exhaust SPSL before providing the employee with exclusion pay under the Cal/OSHA Emergency Temporary Standards if such pay is applicable.
Many school employers opted to provide SPSL-type leave beyond September 30, 2021, following negotiations with unions. Importantly, the amount of such paid leave received in 2022 by employees before SB 114 takes effect might qualify as an offset that wholly or partially satisfies an employer’s SPSL obligations. Specifically, if an employee received paid sick leave after January 1, 2022, for one of the reasons outlined above, and earned compensation at the same rates outlined above, the public employer may count the hours of the other paid benefit or leave towards the total number of hours of SPSL the employer is required to provide.
Notice and Paystub Requirements
SB 114 requires employers to provide notice to employees of their rights to use the new bank of SPSL. SB 114 directs the Labor Commissioner to draft a model notice template within seven days of the effective date of the bill. Employers may provide this notice to employees electronically, such as via email, if employees do not frequent a workplace.
Employers must also provide employees with notice of the amount of SPSL that the employee has used, either on employees’ itemized wage statements as a discrete bank of paid leave separate from regular paid sick leave, or in a separate written statement that is provided on the employee’s pay date. For part-time employees, public employers must calculate employees’ initial entitlement to their bank of SPSL, using the calculation outlined above, and update that calculation on subsequent wage statements as the employee uses leave. This requirement goes into effect at the start of the next full pay period after the effective date of SB 114 (i.e., 10 days after the law is enacted).
Retroactivity and End Date
The provisions of SB 114 apply “retroactively to January 1, 2022.”
Upon the oral or written request of the employee, a public employer must provide an employee with a retroactive payment for the period of leave if the employee took SPSL-qualifying leave on or after January 1, 2022. The number of hours of leave corresponding to the amount of the retroactive payment may be deducted from the total bank of SPSL hours the employee would otherwise receive under SB 114. Public employers must provide the retroactive payments to employees on or before the next full pay period after an employee requests such payment, and the payment must be reflected on the corresponding wage statement.
If an employee requests to retroactively use the additional 40 hours of SPSL based on a positive COVID test taken after January 1, 2022, the employer may require the employee to provide documentation of the positive COVID-19 diagnostic test during the relevant period.
SPSL will remain in effect through September 30, 2022. However, an employee taking SPSL at the time of the expiration will be permitted to take the full amount of SPSL to which the employee otherwise would have been entitled.
Education employers may contact the authors of this Alert or their usual AALRR counsel if they have questions, or would like assistance in preparing their agency to follow the requirements of SB 114.