Governor Newson is expected to sign another COVID-19 supplemental paid sick leave bill in early February requiring employers to provide additional paid sick leave retroactively to January 1, 2022. Covered employers under the new law will be obligated to re-examine all sick leave taken this year, pay retroactive supplemental paid sick leave where required, and provide supplemental paid sick leave prospectively through September 30, 2022.
In 2021, Senate Bill 95 created a COVID-19 supplemental paid sick leave program applicable to employers with more than 25 employees. The law specified that employees were entitled to up to 80 hours of supplemental paid sick leave due to quarantine or isolation related to COVID-19, attending an appointment or experiencing symptoms related to a COVID-19 vaccine, experiencing COVID-19 symptoms, caring for a family member who is subject to quarantine, or caring for a child whose school or place of care is closed due to COVID-19. This program expired on September 30, 2021.
SB 114 Extends the Provisions of SB 95 with Changes
The Omicron variant of COVID-19 emerged after this program expired and resulted in additional COVID-19 infections. The Legislature passed SB 114 to extend the provisions of SB 95 for an additional nine months with some significant changes.
Some of the major provisions of SB 114 are that the bill:
- Applies to employers with 26 or more employees as did SB 95.
- Provides 40 hours of leave, with an additional 40 hours for a positive test, while SB 95 provided one block of 80 hours of leave.
- Entitles employees to supplemental paid sick leave if they are unable to work or telework because they are subject to quarantine or isolation related to COVID-19, advised by a healthcare provider to self-quarantine, attending an appointment to receive a COVID-19 vaccine or booster, experiencing symptoms or caring for a family member experiencing symptoms related to a COVID-19 vaccine or booster, experiencing COVID-19 symptoms and seeking a medical diagnosis, caring for a family member subject to quarantine or isolation, or caring for a child whose school or place of care is closed due to COVID-19.
- Adds that for each vaccination or booster, an employer may limit the total supplemental paid sick leave for symptoms to 3 days or 24 hours unless the employee provides medical verification that the employee is continuing to experience symptoms.
- After taking the first 40 hours of supplemental paid sick leave, permits employees an additional 40 hours if the covered employee or a family member for whom the covered employee is providing care tests positive for COVID-19, or the covered employee is waiting for test results to end quarantine.
- Requires employers to make return-to-work tests available at no cost to the employee.
- Does not obligate employers to provide additional 40 hours of COVID-19 supplemental leave if the employee refuses to take a test or to provide test results required to end quarantine.
- Specifies the total number of hours under supplemental paid sick leave is in addition to any paid sick leave that may be available under existing law.
- Authorizes the employee to determine how many hours of supplemental paid sick leave to use.
- Specifies that each hour of supplemental paid sick leave for nonexempt employees shall be compensated based on their regular rate of pay so long as compensation does not exceed $511 per day or $5,110 in total.
- Specifies that an employer may not require a covered employee to use other paid leave or unpaid leave before the employee uses COVID-19 supplemental paid sick leave or in lieu of such leave.
- Does not require employers to first exhaust supplemental paid sick leave prior to complying with exclusion pay required under Cal OSHA’s Emergency Temporary Standards.
Because SB 114 has both retroactive and prospective effects, employers will need to make compensation adjustments for employees who took time off for COVID-19 related reasons earlier this year and provide additional supplemental paid sick leave through September 30, 2022. As of this date, the Legislature has made no provision for any tax credits or fiscal relief for employers required to make these payments.