State Covid Sick Leave

BACKGROUND – COVID-19 SUPPLEMENTAL SICK LEAVE
SB 114, which was signed by Governor Gavin Newsom on February 9, 2022, reinstates supplemental sick leave benefits for most California workers, providing up to two weeks of paid time off for COVID-19 related illnesses and absences. In the wake of peaking COVID-19 outbreaks due to the Omicron variant, providing more sick time for impacted workers and their families became a clear priority. SEIU Local 2015’s members have been prominent supporters of the call to renew COVID sick leave in California through SB 114. This important victory ensures sick pay for providers who need time off as the pandemic lingers. These benefits are available between January 1, 2022 and September 30, 2022.

HOW MUCH SICK TIME CAN I CLAIM?
This bill entitles a covered worker (for employers that employ more than 25 workers) to 40 hours of COVID sick time if that employee works full time or was scheduled to work over 40 hours per week in the two weeks preceding the date that the covered employee used the COVID-19 supplemental sick leave.

For workers whose work week is not customarily 40 hours or more, they will have available to them:

  1. The total number of hours the employee is typically scheduled in a week, if this is constant.
  2. If the worker’s schedule is variable, then the sick time available to them shall be:
    7 days x Average Number of Hours Worked Each Day In The Past Six Months (or as long as is available, for newer employees)
  3. If the worker has been with the employer for less than seven days then the allowable sick time will be the total number of hours they’ve worked thus far.

Workers may use an additional week’s worth of sick time (up to 40 hours, or else applicable to the formulas above for non-full time workers) if they themselves, or a family member they are taking care of, tests positive for COVID-19. 

FOR WHICH PURPOSES CAN I CLAIM COVID SUPPLEMENTAL SICK TIME?
COVID-19 supplemental sick leave is available for when workers are unable to work or telework due to reasons related to COVID-19, this may also include:

  1. The worker or a family member who the worker is taking care of, has tested positive for COVID-19
  2. The worker is subject to a quarantine or isolation period, or is taking care of a family member subject to a quarantine or isolation period
  3. The worker attending a COVID-19 vaccination or booster appointment for themselves or a family member
  4. The worker is experiencing symptoms or taking care of a family member experiencing symptoms from COVID-19 vaccine or booster (for this cause, employers may require a doctor’s note to verify the need for additional sick time over 3 days or 24 hours)
  5. The worker, or a family member that the employee is taking care of, tested positive for COVID-19
  6. The worker is taking care of a child whose school or day care is closed due to COVID-19 related reasons 

HOW SHOULD IHSS PROVIDERS APPLY FOR USE OF THESE SICK DAYS?
Providers shall inform recipients about the need for sick leave, and submit a sick leave claim using the COVID-19 supplemental sick leave forms made available by CDSS.

Note: As of February 11, 2022 CDSS is still in the process of updating the proper forms and notices for this form of COVID-19 sick leave. Materials should made available in the next week. For provider who want to claim retroactive leave, please wait until you receive the updated forms; otherwise, the county may reject the form. 

DO I NEED TO SHOW MEDICAL DOCUMENTATION?
Employers may in some circumstances ask for documentation which will need to be provided to validate the leave request. Workers should be prepared in case of the following:

  1. For leave related to symptoms from a COVID-19 vaccine or booster that exceeds 3 days or 24 hours, the employer may require a doctor’s note to verify the need for additional sick leave.
  2. If the employee tested positive for COVID-19, the employer may require test results on or after the fifth day following the positive test. In this case, the employer should make the test available to the employee at no cost to the employee.
  3. If the employee is taking care of a family member who tested positive for COVID-19, an employer may request to see documentation of that family member’s test result before approving the leave. 

WHAT IS THE WAGE RATE FOR THE SICK LEAVE?
For nonexempt workers (not excluded from overtime), hourly wage rates for the supplemental sick leave must paid equal to (but not to exceed $511/day) the following:

  1. Total Wages (minus overtime) ÷ Total Hours (minus overtime) Over Past 90 Days 
  2. Regular rate of workweek pay for the leave they are using

For exempt workers (excluded from overtime), their wage rates are calculated the same way the employer calculates wages for other forms of paid leave time.

IHSS workers will be compensated at the regular rate of pay. 

CAN MY EMPLOYER MAKE ME USE OTHER TYPES OF LEAVE?
Employers cannot require workers to use other paid or unpaid leave, paid time off, or vacation time before workers use supplemental sick leave unless the employer provides another separate supplemental benefit for COVID-19 leave as described above. Employers cannot require workers to apply for workers’ compensation or state disability insurance instead of applying for supplemental sick leave.

IS THERE RETROACTIVE PAYMENT FOR THIS SICK LEAVE?
If a worker took leave and was not compensated, they can request retroactive payment up to January 1, 2022. If the employer did not compensate the worker for COVID-19 related sick leave at or above the rates specified above, the employee may request retroactive payment to match the required compensation. After making this request, the employer has until the payday for the next full pay period to pay the retroactive payment. On that payday, the employer must also provide an accurate notice on how many supplemental sick leave hours remain available to the worker.

WHAT HAPPENS IF THE EMPLOYER DENIES ME THIS SICK LEAVE?
Any worker denied the supplemental sick leave can file a claim with the Labor Commissioner’s Office or a Report of Labor Law Violations. Forms can be found at the Labor Commissioner’s Office website:
(www.dir.ca.gov/dlse/HowToReportViolationtoBOFE.htm).

WHAT IF THE EMPLOYER RETALIATES FOR USING THIS SICK LEAVE?
Retaliation or discrimination against a worker requesting or using this paid sick time is against the law. A worker who experiences retaliation or discrimination can file a claim with the Labor Commissioner’s Office. You may contact your local office of the Labor Commissioner at www.dir.ca.gov/dlse/DistrictOffices.htm or call its headquarters at (510) 285-2118.

WHERE CAN I GET MORE INFORMATION?
For more information, call your facility representative, the Member Action Center (MAC) at (855) 810-2015, or visit the Department of Industrial Relations at www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html.

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