Previously, we discussed the likelihood of California implementing procedures to reactivate Senate Bill (‘SB’) 95 or 2021 COVID-19 Supplemental Paid Sick Leave (CSPSL) which expired on 30 September 2021 (see here).

On 9 February 2022, Governor Newsom signed SB 114  (2022 CSPSL or Labor Code section 248.6). The Bill took effect on 19 February 2022, but applies retroactively from 1 January 2022 and will be effective through 30 September 2022.

The new legislation appears to be similar to the 2021 CSPSL, but also contains major differences regarding the characterisation of the amount of hours allotted, regular rate calculations, and wage statement obligations.

The 2022 CSPSL still classifies covered employers as any employer that employs more than 25 employees.

The 2022 CSPSL, however, has expanded to permit employees to use CSPSL to care for family members impacted by COVID-19. ‘Family members’ are defined as children, parents, spouses, registered domestic partners, grandparents, grandchildren, and siblings.

The 2022 CSPSL allows covered employees to take leave if they are unable to work because they are:

• subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace;
• being advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19;
• attending an appointment for themselves or a family member to receive a vaccine or booster for protection against contracting COVID-19;
• experiencing symptoms or caring for a family member experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework;
• experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine or isolate;
• caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Regarding CSPSL associated with vaccines and boosters, employers may limit the hours to three days or 24 hours unless employees can provide medical certification requiring additional time.

Employees are entitled to an additional 40 hours of CSPSL if they, or a family member for whom the covered employee is providing care, tests positive for COVID-19.

If an employee who tests positive takes leave under Bank 2, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the first positive test was taken and provide documentation of those results. The employer must make such a test available at no cost to the employee.

An employer may also require an employee who requests CSPSL to care for a family member who tests positive to provide documentation of that family member’s test results before paying the additional leave.

More importantly, employers have no obligation to provide additional CSPSL under Bank 2 for an employee who refuses to provide documentation of the positive test results.

Unlike the prior law, the 2022 CSPSL provides a method of regular rate of pay calculations regarding an employer’s obligation to pay non-exempt employees that is more in line with methods used when employees use paid sick time, whether or not the employees actually work overtime in that workweek.

Alternatively, the employer may calculate the pay for non-exempt employees by dividing the employee’s total wages, excluding overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods of the prior 90 days of employment. However, for non-exempt employees paid by piece rate, commission or other methods that use all hours to determine the regular rate of pay, total wages (excluding overtime premium pay) must be divided by all hours, to determine the correct amount.

Similar to before, employers must separately provide a list of the remaining CSPSL balance, including the rate of pay and corresponding CSPSL wages, on an employee’s wage statement or in a separate writing. The amount of remaining CSPSL must be displayed separately from any pre-COVID paid sick leave available.

The 2022 CSPSL, however, expands the obligation by requiring employers to include a ‘zero’ amount of hours if employees have not used any CSPSL.

Unlike the 2021 supplemental paid sick leave arrangements, the 2022 CSPSL no longer allows an employer to exhaust CSPSL prior to providing an employee exclusion pay per the California Occupational Safety and Helath Administration (OSHA) Emergency Temporary Standard (ETS).

If an employer compensated a covered employee in an amount equal to or greater than the amount of compensation the employee was entitled to under the 2022 CSPSL, then upon the oral or written request of the employee, the employee should be credited for any leave hours used for CSPSL-specific purposes, and the employer should be credited for providing those hours as CSPSL hours.