On February 9, 2022, Governor Newsom signed Senate Bill (“SB”) 114[1] into law. The law reauthorizes COVID-19 Supplemental Paid Sick Leave (“SPSL”), providing paid leave entitlements to employees who are unable to work or telework due to a number of qualifying reasons related to COVID-19. The law becomes effective on February 19, 2022 and will require covered employers to provide SPSL to qualifying employees retroactive to January 1, 2022 and through September 30, 2022.
The purpose of this bulletin is to explain the requirements set forth in SB 114, identify key differences between this bill and Senate Bill (“SB”) 95, which created SPSL in 2021,[2] and advise employers on how they can discharge their SPSL legal obligations. Additionally, Liebert Cassidy Whitmore will be conducting a webinar about SB 114 and how to manage its requirements on February 23.
The law’s requirements apply to public and private employers that employ 26 or more workers “under any appointment or contract of hire.”[3]
The law requires that covered employers provide SPSL to any employee who cannot work or telework due to one or more of the following COVID-19-related reasons[4]:
1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the California Department of Public Health (“CDPH”), the federal Centers for Disease Control and Prevention (“CDC”), or a local public health officer who has jurisdiction over the workplace.[5]
2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
3. The covered employee is attending an appointment for themselves or a family member[6] to receive a vaccine or a vaccine booster for protection against COVID-19.[7]
4. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.[8]
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who:
A. Is subject to a CDPH, CDC, or local health officer order or guidance to isolate or quarantine, OR
B. Has been advised by a health care provider to isolate or quarantine.
7. 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.
8. The covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.[9]
The subparagraphs below describe the SPSL amounts to which covered employees are entitled under the law:
Employees who worked at least 40 hours per week in the two weeks before they take SPSL, or who the employer considers to be full-time employees, are entitled to 40 hours of SPSL for qualifying reasons 1 through 7, above.[10]
Firefighters who were scheduled to work more than 40 hours in the workweek before they take SPSL are entitled to the amount of SPSL equal to the “total number of hours that the covered employee was scheduled to work for the employer in that workweek,” which may exceed 40 hours, for qualifying reasons 1 through 7.[11]
Because the bill counts “the total number of hours that a [firefighter] was scheduled to work,” the plain language of the statute covers scheduled overtime. Employers should include such time in the SPSL allotment provided to firefighters. Notably, the bill also does not address work schedules that vary week-to-week. Instead, the bill establishes firefighters’ SPSL entitlement based on the work hours scheduled for the week immediately preceding the week the firefighter takes SPSL. Firefighters are often scheduled to work differing hours form one week to the next. The bill does not seem to consider this in determining the amount of leave that firefighters receive.
If an employee does not fall into the first two categories (e.g., works part-time), then the amount of SPSL will depend on the employee’s schedule.[12]
If the employee has a regular weekly schedule, then the employee will receive an amount of SPSL equivalent to one regular workweek for qualifying reasons 1 through 7.
If an employee works variable hours, then the employer must calculate the average number of hours the employee worked each workday over the last six months and multiply the result by seven to get the amount of SPSL. If the employee has worked for fewer than six months, then the employer calculates the average hours worked for the entire employment period and multiplies the daily average by seven.
If an employee works variable hours and has only worked for seven days or fewer, then the employee receives an amount of SPSL equivalent to the total number of hours worked for the employer.
In addition to the leave amounts described above, SB 114 also grants employees a separate “leave bank” of SPSL for qualifying reason 8 that equals the amount of SPSL the employee receives for qualifying reasons 1 through 7.[13] As a result, employers should be prepared to provide two separate leave banks to covered employees: (1) a leave bank for qualifying reasons 1 through 7 with an amount of leave based on their work schedule, as described above; and (2) a leave bank for qualifying reason 8 with an equivalent amount of leave as provided to the employee for qualifying reasons 1 through 7.
Employees who take SPSL under qualifying reason 8 may also qualify for SPSL coverage under more than one of the above-enumerated qualifying reasons (see qualifying reasons 1, 2, and 6). Therefore, it will be important for employers to ascertain the specific qualifying reason for the employee’s leave in order to deduct SPSL from the appropriate leave bank and properly record such leave usage.
Covered employees generally have the right to determine how much of their SPSL balance they would like to use.[14] Employers must provide SPSL immediately upon oral or written request, but may withhold payment for the usage of leave for qualifying reason 8 in the event that the employee does not provide test results, as described below.
Employers that receive employee requests for the use of SPSL for qualifying reason 8 possess certain discretionary authority under SB 114, but must observe specific limitations placed on such authority, as discussed below.
If an employee requests SPSL for reason 8, the employer may require that the employee provide the positive test result to confirm that the employee qualifies for such leave. The employer may also require that the employee provide the family member’s positive test result[15] if the employee is requesting leave in order to provide care to a covered family member.[16]
As a best practice, employers should consider requesting that the employee provide documentation of COVID-19 test results from an independent third party, such as a health care provider or test center.[17] While SB 114 does not specify which, if any, COVID-19 tests are preferred or prohibited for this purpose, a documentation of the test result produced by a third party will ensure that employers remain in compliance with the regulatory requirements for tests under the Cal/OSHA Emergency Temporary Standard (“ETS”).[18]
The bill expressly provides that if an employee refuses to produce the initial positive test result for either the employee themselves or their family member[19], depending on the reason for the leave, then the employer has no obligation to provide SPSL for reason 8.[20]
Employers may also require an employee who has taken SPSL for qualifying reason 8 to test for COVID-19 on or after day five, following the initial positive test.[21] Under existing isolation guidance from the CDPH,[22] as well as Department of Industrial Relations (“DIR”) guidance on the Cal/OSHA ETS,[23] employees who test negative for COVID-19 on or after day five and who do not present COVID-19 symptoms may end their isolation periods and return to work.
For the purpose of potentially discontinuing isolation after a positive COVID-19 test, both the CDPH and DIR state a preference for antigen tests to determine an individuals’ COVID-19 status.[24] While neither the CDPH nor DIR require that the COVID-19 test be administered by an independent third party for such purpose, employers may consider disallowing self-administered and self-read tests (e.g., at-home tests) and requiring that employees provide documentation of the negative test result prepared by an independent third party before returning to work.[25]
Employers should note that if they require an employee to test on or after day five, then the employer must provide the test “at no cost to the employee.”[26]
The bill does not require that employees exhaust SPSL for reasons 1 through 7 before the employee uses SPSL for reason 8.[27]
While several of the qualifying reasons for leave are substantially similar (compare qualifying reasons 1, 2, and 6 to qualifying reason 8), employers are not authorized to draw down such leave concurrently, and will need to track the reasons for employees’ SPSL use meticulously.
For example, an employee who tests positive for COVID-19 might take SPSL for qualifying reasons 1, 2, or 8. Such an employee may be required to isolate pursuant to current CDPH guidance (i.e., qualifying reason 1), due to a health care provider recommendation (i.e., qualifying reason 2) or because the employee tested positive (i.e., qualifying reason 8.)
When an employee requests SPSL for a purpose that may be covered by more than one qualifying reason (e.g., employee tested positive for COVID-19), the employer should request that the employee identify which qualifying reason the employee is using to take SPSL (e.g., qualifying reason 1, 2 or 8 for an individual with COVID-19). The employer should then deduct the SPSL from the appropriate leave bank (i.e., the SPSL bank reserved for qualifying reasons 1 through 7, or the SPSL bank reserved for qualifying reason 8). The employer should keep written records of its employees’ leave usage and the amount of leave used and remaining in each of the SPSL banks.
Under SB 114, the compensation for SPSL for employees is determined by the employees’ exemption status and their pay rate.[28]
For nonexempt employees, compensation is based on the employee’s regular rate of pay or the employee’s total wages less any overtime premium pay.[29] For exempt employees, the law requires employers to calculate employee compensation for SPSL as they would for other forms of paid leave time.[30]
Employers are not required to pay employees more than $511 per day when using SPSL and not more than $5,110 in total.[31]
If an employee’s regular compensation exceeds $511 per day, the employee may elect to supplement the SPSL maximum pay amount with other accrued paid leaves to make up the difference in pay.[32]
The law also requires that, each pay period, employers provide employees “written notice” regarding SPSL that includes the amount of SPSL that an employee has used through the pay period.[33]
Employers may satisfy the notice requirement by listing the SPSL amount separately on an employee’s itemized wage statement[34] or providing such information in a separate writing on paydays.
Further, the law requires that employers post information about SPSL in the workplace.[35] The Labor Commissioner will design and produce a model notice that employers may use to discharge this posting requirement.
For employees who do not frequent the workplace (e.g., teleworking employees), employers may provide the posting information via email.
The new SPSL obligations will take effect 10 days after the Governor enacts SB 114 into law, but as described below, will be retroactive to January 1, 2022.
SPSL will apply retroactively to cover leave taken by employees on or after January 1, 2022 that would otherwise have qualified under reasons 1 through 8.[36]
In other words, if an employee was unable to work or telework due to one of the eight qualifying reasons enumerated above and used another paid leave (or went without pay), then the employee may request that SPSL be applied retroactively to that leave and the employer should restore the leave that the employee used previously.
While employees may request the retroactive application of paid leave either orally or in writing, employers should request that employee make such requests in writing in order for the employer to document such requests and demonstrate their compliance with the law.
The SPSL obligations will remain in effect through September 30, 2022. However, as with the SPSL provided under SB 95, an employee who is using SPSL on September 30, 2022 may continue to use the leave after that expiration date so long as the leave is uninterrupted, and the employee has SPSL remaining available for their use.[37]
One of the most important changes to the authority provided to employers under SB 95 and SB 114 is the new restriction[38] that employers may not compel employees to use SPSL to provide for their continued compensation while the employees are excluded from the workplace pursuant to the Cal/OSHA Emergency Temporary Standard (“ETS”).[39]
Previously, SB 95 (codified at Labor Code section 248.2) authorized employers to draw down employees’ SPSL balances when the employee was excluded from the workplace due to a COVID-19 case or work-related close contact exposure.[40] Now, SB 114 expressly prohibits employers from requiring that employees use SPSL for this purpose:
An employer shall not require a covered employee to first exhaust their COVID-19 supplemental paid sick leave under this section before satisfying any requirement to provide paid leave for reasons related to COVID-19 under any Cal-OSHA COVID-19 Emergency Temporary Standards.[41]
This statutory change leaves employers in the potentially awkward and administratively difficult position of using other paid leaves accrued by the employee in order to provide for their continued compensation while they are excluded from the workplace. While employers cannot require employees who are excluded from the workplace to use the new SPSL, employers may use discretionary authority provided to them pursuant to the DIR[42] in order to use these employees’ paid sick leave accruals in order to provide for their continued compensation.
As a result, employers that are required to exclude employees from the workplace pursuant to the Cal/OSHA ETS regulatory requirements may consider adopting the following approach:
1. Request, but do not require, that employees authorize the use of SPSL to provide for their continued compensation during the exclusion period.
2. If the employee declines to use SPSL for this purpose, require that the employee (who possesses a paid sick leave balance in excess of the maximum statutory leave amount) draw down sick leave in order to provide for their continued compensation while excluded (as discussed at length in this prior special bulletin);[43]
3. If the employee declines to use SPSL during the exclusion period and does not possess a sufficient amount of paid sick leave to provide for their compensation while excluded from the workplace:
A. Provide the employee paid administrative leave to provide for their compensation during the exclusion period; and
B. Do not draw down employees’ SPSL balances during the exclusion period.
Employers that are considering adopting this approach should consult with legal counsel to discuss specific nuances concerning the provision of the leave and associated pay.
Public agencies should be aware that federal funds may aid them in recouping the costs of providing SPSL to their employees. The American Rescue Plan Act (“ARPA”) established the Coronavirus Local Fiscal Recovery (“CLFR”) fund to support local government’s response to, and recovery from, the COVID-19 public health emergency.[44] The Treasury has confirmed that paid sick, medical, and family leave programs provided by public employers to enable compliance with COVID-19 public health precautions will be eligible for receipt of CLFR fund. As such, employers may use payments from the CLFR fund to cover expenses related to the provision of SPSL.[45]
While many of the SPSL requirements will seem familiar to employers, it is imperative to note the differences between SB 114 and SB 95 and the different legal obligations that they entail.
Liebert Cassidy Whitmore attorneys are familiar with obligations created by SB 114. If you wish to learn more, you can register for the firm’s February 23 webinar on SB 114 and its requirements. Should you have any questions about this new legislation and its potential effect on your agency’s leave policies and practices, please do not hesitate to contact the firm.
[1] Sen. Bill No. 114 (2021-2022 Reg. Sess.).
[2] Sen. Bill No. 95 (2021-2022 Reg. Sess.).
[3] Labor Code § 248.6, subd. (a)(3); Labor Code § 245.5, subd. (b).
[4] SB 114 also includes legislation that would provide SPSL for in-home caregivers under Labor Code § 248.7.
[5] NOTE: If multiple isolation or quarantine periods apply, the employee may use SPSL for the minimum amount of time required by the longest isolation or quarantine period.
[6] For the purposes of SB 114, a “family member” includes an employee’s child, a parent, spouse, registered domestic partner, grandparent, grandchild, or sibling. A “child” is a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. A “parent” includes a 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. (Labor Code § 245.5, subd. (c).)
[7] The employer may limit the total SPSL used for each vaccination or booster 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.
[8] Employers may apply the same limitation of 3 days or 24 hours’ SPSL here, 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.
[9] Labor Code § 248.6, subds. (b)(1), (b)(2)(D).
[10] Labor Code § 248.6, subd. (b)(2)(A).
[11] Labor Code § 248.6, subd. (b)(2)(B).
[12] Labor Code § 248.6, subd. (b)(2)(C).
[13] Labor Code § 248.6, subd. (b)(2)(D)(i).
[14] Labor Code § 248.6, subd. (b)(2)(G). If an employee takes SPSL for reasons 3 or 4, above, then the employer may limit leave taken to 24 hours or 3 days unless the employee provides a qualifying note from a health care provider. Labor Code § 248.6, subds. (b)(1)(C), (D).
[15] The Genetic Information Nondiscrimination Act (“GINA”) (42 U.S.C. §§ 2000ff, et seq.) prohibits employers from requesting, requiring, or purchasing genetic information with respect to an employee or a family member of the employee. (42 U.S.C. § 2000ff-1(b).) “Genetic information” includes “information about the manifestation of disease or disorder in family members of the individual.” (29 C.F.R. § 1635.3(b).) However, the prohibition against requesting genetic information does not apply where a covered employer “requests family medical history to comply with the certification provisions of . . . State or local family and medical leave laws.” (29 C.F.R. § 1635.8(b)(3).) SPSL provided under SB 114 likely qualifies for this exemption. Accordingly, the GINA likely does not prevent employers from requesting family members’ COVID-19 test results under SB 114.
[16] Labor Code § 248.6, subd. (b)(2)(D)(iii).
[17] As a general rule, the Confidentiality of Medical Information Act (“CMIA”) prohibits employers from using, disclosing, or knowingly permitting employees or agents to use or disclose employee medical information. (Civil Code § 56.20, subd. (c).) However, an exception to the rule allows employers to use employee medical information in order to administer and maintain employee benefit plans, and to determine eligibility for paid and unpaid leave from work for medical reasons. (Civil Code § 56.20, subd. (c)(3).) Employers may request employee test results to administer SPSL under this exception; however, they should still observe confidentiality requirements where applicable.
[18] The Cal/OSHA ETS prohibits the use of self-administered and self-read tests for purposes under those regulations. 8 C.C.R. § 3205(b)(6)(C).
[19] See footnote 17, supra, regarding the implications of receiving a family member’s results under the GINA.
[20] Labor Code § 248.6, subd. (b)(2)(D)(iv). In this scenario, employers will need to provide leave immediately to the employee, but can withhold payment for the leave duration until the employee produces the COVID-19 test result.
[21] Labor Code § 248.6, subd. (b)(2)(D)(ii).
[22] CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (Updated on January 8, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx> (as of February 4, 2022).
[23] DIR, “COVID-19 Emergency Temporary Standards Frequently Asked Questions” (Updated on January 28, 2022) <https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso> (as of February 4, 2022).
[24] The CDPH does not have a preferred test for individuals who must quarantine, but nucleic acid amplification tests (“NAAT”) or Loop-Mediated Isothermal Amplification (“LAMP”) tests are acceptable, as well as over-the-counter tests.
[25] See Labor Code § 2802, subd. (a); 29 C.F.R. § 785.43.
[26] Labor Code § 248.6, subd. (b)(2)(D)(ii).
[27] Labor Code § 248.6, subd. (b)(2)(D)(v).
[28] Nonexempt employees are subject to the requirements of the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.). Exempt employees are not subject to the Act’s minimum wage and maximum hours requirements. (29 U.S.C. § 213.)
[29] Labor Code § 248.6, subd. (b)(3)(A)(i).
[30] Labor Code § 248.6, subd. (b)(3)(A)(ii).
[31] Labor Code § 248.6, subd. (b)(3)(C). For firefighters, this calculation methodology may result in the employee exhausting SPSL leave after 10 days, regardless of extra SPSL entitlements they may have based upon their scheduled hours.
[32] Labor Code § 248.6, subd. (b)(3)(C).
[33] Labor Code § 248.6, subd. (d)(2).
[34] Labor Code § 226.
[35] Labor Code § 248.6, subd. (d)(4); Labor Code § 247, subd. (a).
[36] Labor Code § 248.6, subds. (c), (e)(2).
[37] Labor Code § 248.6, subd. (f).
[38] Labor Code § 248.6, subd. (b)(5).
[39] See 8 C.C.R. § 3205(c)(9)(D).
[40] Labor Code § 248.2, subd. (b)(5).
[41] Labor Code § 248.6, subd. (b)(5) [emphasis added].
[42] DIR, “COVID-19 Emergency Temporary Standards Frequently Asked Questions” (Updated on January 28, 2022) <https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso> (as of February 4, 2022).
[43] SB 114 states 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 [SPSL] or in lieu of [SPSL].” (Labor Code § 248.6, subd. (b)(4).) As a result, an employer must take care to avoid any implication that it is requiring the employee to utilize such sick leave before using SPSL. Rather, employers must effectively communicate that they are utilizing non-statutory sick leave to satisfy the ETS exclusion pay requirement because the employee has chosen not to use SPSL. The distinction is subtle, but it is important. During these conversations, employers can also remind employees that their SPSL hours expire September 30, 2022 as an incentive to utilize SPSL first, while employer-provided sick leave hours do not carry a similar expiration date.
[44] U.S. Department of the Treasury, “Coronavirus State and Local Fiscal Recovery Funds,” <https://home.treasury.gov/policy-issues/coronavirus/assistance-for-state-local-and-tribal-governments/state-and-local-fiscal-recovery-funds> (accessed February 8, 2022). American Rescue Plan Act § 9901; 42 U.S.C. §§ 802, 803.
[45] See Final Rule 31 C.F.R. § 35.6, subd. (b).); 87 Fed. Reg. 4368 [“Treasury agrees that . . . under the final rule, creating, expanding, or financially supporting paid sick, medical, or family leave programs is an enumerated eligible use of funds to respond to the negative economic impacts of the pandemic.”]. Further support for this reading is also found in the “Overview of the Final Rule,” supra, at 14, 18 and the current Interim Final Rule at 86 Fed. Reg. 26822 [proposed 31 C.F.R. § 35.6, subd. (b)(1)(xiv)].