You’d be forgiven for not keeping up with California’s start-and-stop efforts to provide the state’s workers with paid sick leave for reasons related to the COVID-19 pandemic.
The first iteration of COVID-19 supplemental paid sick leave was AB 1867, which became effective Sept. 9, 2020, but which expired Dec. 31, 2020. (The leave is called “supplemental” because it is in addition to “regular” paid sick leave provided by California’s Healthy Workplaces, Healthy Families Act of 2014.) SB 95 then picked up the baton and expanded the prior COVID-19 sick leave entitlement, but that law expired Sept. 30, 2021.
Now there’s SB 114, which is codified at Labor Code sections 248.6 and 248.7. This law, which became effective Feb. 9, 2022, and is retroactive to Jan 1, 2022, continues and modifies prior COVID-19 paid sick leave protections, but is itself scheduled to expire Sept. 30, 2022. Read on for the latest details.
Covered Employers/Employees and Permissible Reasons for Leave
As before, the COVID-19 supplemental paid sick leave entitlement only applies to employers with more than 25 employees. (Lab. Code, § 248.6, subd. (a)(3).) And which employees are covered remains generally the same, although leave may now also be taken when the employee is caring for an ill family member in certain circumstances.
Specifically, SB 114 covers employees who are unable to work or telework because of the following reasons:
- The employee is subject (or caring for a family member who is subject) to a quarantine or isolation period related to COVID-19 as defined by an order or guidance from the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace. Note that if the employee is subject to more than one of the foregoing, they must be allowed to use the leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period. (Lab. Code, § 248.6, subd. (b)(1)(A) & (b)(1)(F).)
- The employee has been advised by a health care provider to isolate or quarantine because of COVID-19. (Lab. Code, § 248.6, subd. (b)(1)(B).)
- The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or vaccine booster. (Lab. Code, § 248.6, subd. (b)(1)(C).)
- The 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. (Lab. Code, § 248.6, subd. (b)(1)(D).)
- The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis. (Lab. Code, § 248.6, subd. (b)(1)(E).)
- The employee is caring for a child whose school or daycare is closed or otherwise unavailable for reasons related to COVID-19 on the premises. (Lab. Code, § 248.6, subd. (b)(1)(G).)
Amount of Leave
A covered employee is entitled to 40 hours of paid sick leave–previously, the amount was 80 hours–if they (1) are a full-time employee or (2) worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date that leave is taken. (Lab. Code, § 248.6, subd. (b)(2)(A).)
Employees who do not satisfy either of these criteria are still entitled to some amount of paid sick leave. For example, if the employee has a normal weekly schedule, they would be entitled to the total number of hours they are normally scheduled to work over one week. (Lab. Code, § 248.6, subd. (b)(2)(C)(i).) And if the employee works a variable number of hours, they would be entitled to seven times the average number of hours they worked worked each day in the six months preceding the date that the leave began. (Lab. Code, § 248.6, subd. (b)(2)(C)(ii).)
Although SB 114 reduces the entitlement to paid sick leave from 80 to 40 hours, the law adds that an employee is entitled to additional leave of up to 40 hours if the employee or a family member tests positive for COVID-19. (Lab. Code, § 248.6, subd. (b)(2)(D) & (b)(2)(E).) Note, however, that this additional leave time is subject to the employee’s providing specified documentation, if requested by the employer.
Compensation During Leave
Compensation during leave for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time. (Lab. Code, § 248.6, subd. (b)(3)(A)(ii).)
For nonexempt employees, compensation is calculated in one of the following ways:
- In the same manner as 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; or
- By dividing the employee’s total wages, not including overtime premium pay, by the employee’s total nonovertime hours worked in the full pay periods occurring within the prior 90 days of employment; provided that, for nonexempt employees paid by piece rate, commission, or some other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, must be divided by all hours, to determine the correct amount of paid sick leave.
(Lab. Code, § 248.6, subd. (b)(3)(A)(i).)
Note that there is a cap on how much an employer may be on the hook for. An employer is not required to pay more than $511 per day or $5,110 in the aggregate for leave taken for a COVID-19-related reason. (Lab. Code, § 248.6, subd. (b)(3)(C).)
As the COVID-19 pandemic lingers on, it remains to be seen whether, come September, the Legislature will feel compelled to pass yet another iteration of this supplemental paid sick leave entitlement. Although giving workers the ability to take paid time off because of COVID-19 is certainly a positive, the Legislature’s failure to pass another extension might also be welcome if it meant that the pandemic is well and truly over.
For discussion of SB 114 and all things leave-law related, check out CEB’s Employee Leave Laws: Compliance and Litigation.
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