On February 9, 2022, Governor Newsom signed Senate Bill (SB) 114, which requires employers to provide up to 80 hours of supplemental paid sick leave for qualifying Covid-19 related reasons. Although the law is similar to SB 95 (the previous supplemental paid sick leave law which expired on September 30, 2021), there are some differences.

The law applies retroactively from January 1, 2022, however, an employer’s obligation to provide supplemental paid sick leave pursuant to SB 114 does not begin until February 19, 2022.  This law expires on September 30, 2022.

Covered Employers, Employees, and Family Members

SB 114 applies to employers with 26 or more employees. SB 114 applies to all employees who are unable to work or telework due to a qualifying COVID-19 related reason. Additionally, it allows employees to use leave to care for family members. “Family member” is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.

Categories of Leave:

The new legislation provides up to 80 hours of leave for full-time employees, allocated into two categories of 40 hours each:

Category 1: Up to 40 Hours for Covid Qualifying Reasons

SB 114 allows employees to use up to 40 hours of paid sick leave if they are unable to work or telework for the following reasons:

• They are subject to a COVID-19 quarantine or isolation period as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
• They have been advised by a healthcare provider to isolate or quarantine due to COVID-19.
• They are experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• They are caring for a family member who is subject to a CDC, state, or local public health order or guidance, or who has been advised by a health care provider to isolate or quarantine.
• They are caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
• They are attending an appointment to obtain a COVID-19 vaccine or booster, or they are going with a family member to get vaccinated.
• They are experiencing symptoms or caring for a family member experiencing symptoms
  related to a COVID-19 vaccine or vaccine booster that prevents them from working or teleworking.

Note: Employees may be limited to 24 hours of leave for the two vaccine-related reasons listed directly above unless they provide medical certification asking for more time. This limitation applies for each vaccine or booster shot and includes the time used to get the vaccine or vaccine booster.

     Category 2: Up to an Additional 40 Hours for Positive Covid-19 Tests

The second category of leaves entitles an employee up to 40 hours of paid sick leave if the employee, or one of their family members who they provide care for, tests positive for COVID-19.  Under the new law, an employer may require proof of a positive test from an employee or from an employee’s family member.

The law specifically states that an employer has no obligation to provide additional COVID-19 supplemental paid sick leave for an employee who refuses to provide documentation of the results of the test upon the request of the employer.

     Amount of Leave

Full-time employees are entitled to 40 hours of leave under each of the two leave categories. Part-time employees with pre-set weekly schedules are entitled to the total number of hours normally scheduled for one week, not to exceed 40 hours. Part-time employees that do not have a set schedule are entitled to seven times the average number of hours they typically have worked each day in the six months before their requested leave.

     Notice Requirements

Employers are required to post a notice to be developed by the Labor Commissioner about supplemental paid sick leave. An employer can also send an email if their employees work outside of the workplace.

Employers must provide each employee with written notice that shows the amount of leave the employee has used through each pay period. An employer must do this on either the employee’s itemized wage statement or in a separate writing provided on each pay day. The employer should list zero hours used if a worker has not used any leave.

     Possible Offset

The paid leave provided under other laws, like Cal/OSHA Emergency Temporary Standard, may not count towards this paid sick leave. Also, employers cannot require the employee to use any other paid or unpaid leave, paid time off, or vacation time provided before the employee uses supplemental sick leave or in lieu of using sick leave.

Call Hill Farrer for Further Questions

     Please contact your Hill Farrer attorney or any member of our Labor and Employment department for additional information and assistance with complying with this new law.