California Reactivates COVID-19 Supplemental Paid Sick Leave

Date   Feb 16, 2022

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 September 30, 2021. On February 9, 2022, Governor Newsom signed SB 114 (2022 CSPSL or Labor Code section 248.6) which will not take effect until February 19, 2022, but will apply retroactively from January 1, 2022 and be effective through September 30, 2022.

The new legislation appears to be similar to the 2021 CSPSL, which we addressed in a prior Alert, but also contains major differences regarding the characterization of the amount of hours allotted, regular rate calculations, and wage statement obligations.

Who is a Covered Employer, Employee and Family Member?

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.

What is the New Type and Amount of CSPSL Hours Owed?

The 2022 CSPSL now provides up to 80 hours in two separate CSPSL banks, with each bank allowing up to 40 hours of CSPSL, which differs from the prior 2021 CSPSL.

Full-time employees who worked, or were scheduled to work, at least 40 hours per week in the two weeks preceding the date CSPSL was taken are entitled to 40 hours of CSPSL. 

Part-time employees with normal weekly schedules are entitled to the total number of hours normally scheduled for one week, not to exceed 40 hours. Part-time employees on variable schedules are entitled to seven times the average number of hours worked each day in the six months prior to the date the employee takes CSPSL, not to exceed 40 hours. Part-time employees who worked more than seven days but less than six months will be subject to the same calculations but over the employee’s entire period of employment. Lastly, part-time employees who worked seven days or fewer will receive hours equal to their total number of hours worked.

How Does an Employee Qualify for the First 40 CSPSL Hours Under Bank 1?

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

  1. 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.
  2. Being advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19.
  3. Attending an appointment for themselves or a family member to receive a vaccine or booster for protection against contracting COVID-19.
  4. 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.
  5. Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. 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.
  7. 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 3 days or 24 hours unless employees can provide medical certification requiring additional time

How Does an Employee Qualify for the Additional 40 CSPSL Hours Under Bank 2?

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.

How is the Payment of CSPSL Calculated Differently than Under the Prior Law?

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 nonexempt 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.

What are the New Wage Statement Obligations?

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.

What is the New Impact of the 2022 CSPSL on Cal-OSHA’s Exclusion Pay?

Unlike SB95, the 2022 CSPSL no longer allows an employer to exhaust CSPSL prior to providing an employee exclusion pay per Cal OSHA’s Emergency Temporary Standard (ETS).

Can An Employee Receive Credit for Having Been Provided Supplemental Paid Sick Leave?

If an employer compensated a covered employee in an amount equal to or greater than the amount of compensation under the 2022 CSPSL the employee was entitled to, 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.

If you have any questions regarding this Alert, please contact the authors, David L. Cheng, partner in our Los Angeles office at, or Paul M. Suh, associate in our Los Angeles office at Of course, you can also contact the FordHarrison attorney with whom you usually work.