New COVID-19 Supplemental Paid Sick Leave goes into effect February 19

Get your ducks in a row

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Although the California Covid-19 Paid Sick Leave bill ended in September 2021, a new bill has been put in place to continue paid sick leave for those affected by Covid-19. This new bill is effective February 19th, 2022 and is retroactive to January 1st 2022. The key similarities and differences between the 2021 bill and the new bill are listed below.

Similarities in SB 95 (Old Bill) and SB 114 (New Bill):

  • Both apply to employers with more than 25 employees.
  • Both apply retroactively.
  • Both cap CSPSL at $511 per day or $5,110 in the aggregate.

Differences between SB 95 (Old Bill) and SB 114 (New Bill):

  • SB 95 provided up to 80 hours of CSPSL in a single batch, while SB 114 provides CSPSL in two batches (each batch permitting up to 40 hours of CSPSL).
  • SB 95 required wage statements to show the amount of leave available, while SB 114 requires wage statements to show the amount of leave used.
  • Each law uses different methods of calculating the regular rate of pay for compensating CSPSL. See below for calculation method.

Important Info for Employers:

  • While the new COVID-19 supplemental sick pay law is retroactive to January 1st 2022, it does not go into effect until February 19th, 2022. This gives you a week to develop processes to be compliant with the new law.
  • Leave calculation requirements for Part-time workers. Calculate seven times the average number of hours the employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave.
    • If the employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation shall instead be made over the entire period the employee has worked for the employer.
    • If the employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, the employee is entitled to the total number of hours the covered employee has worked for that employer.
  • Employers must list the amount of SPSL the employee has used through the applicable pay period on the employee's paystub.
  • SB 114 will be in effect through September 30, 2022. However, an employee taking leave as of that date shall be permitted to take their full amount of leave. Keep an eye on this date because the legislature could vote to extend SPSL further.
  • Payment cap is $511 per day or $5,110 in the aggregate.
  • CSPSL payments must be made no later than the payday for the next regular payroll period after the leave was taken.
  • Employers must post a notice or send a digital notice to those working remotely or not frequenting a physical workplace regarding the new CSPSL rules.
  • Employers are required to provide sick leave for anyone exposed to an employee who has a confirmed positive Covid-19 test. (This is outside of the “Covid-19 Paid Sick Leave”.)

Calculating Regular Rate of Pay for Full Time Exempt/Non-Exempt employees and Part Time Employees:

The regular rate of pay is different under SB 114 compared to its prior iteration. Under the prior SB 95, employers had to utilize the rate of pay that was the highest under several different calculations. SB 114 instead defines regular rate of pay more in line with the methodology under regular paid sick leave, which allows employers to choose among a number of methods.

For nonexempt employees, the regular rate of pay is determined by one of the following:

· Calculated in the same manner as the 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

· Calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime 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 other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of COVID-19 supplemental paid sick leave.

SPSL for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time. Like the prior law, the new legislation caps the amount of leave required to be paid at $511 per day and $5,110 in the aggregate.

Actions to take:

  • Prepare an updated policy.
  • Update payroll for the new Paystub requirements.
  • Look out of a notice from the Labor Commissioner.
  • Have process in place to handle retroactive and new leave requests.
  • Preemptively calculate the amount of retroactive payments you will need to make. (You cannot request medical information or underlying diagnosis information when requesting documentation to support leave requests — both new and retroactive).
  • Make all employees aware of exclusion pay vs. state supplemented Covid-19 Sick Pay.
  • Post information received by the commissioner in your workplace and send digitally to employees who do not frequent the workplace.

The law is in constant flux, to keep up to date it is advised that all employers in California check the website for the California Labor Commissioner.