Governor Newsom signed Senate Bill 114 on February 9, 2022, resurrecting COVID-19 Supplemental Paid Sick Leave for 2022 (“SPSL 2022”). The new law will be effective on Saturday, February 19, 2022 (10 days after its enactment), but may require payments retroactive to the beginning of 2022 as explained below. The highlights of SPSL 2022 are discussed below.
Small Business Carve Out
SPSL 2022 will not apply to businesses with 25 or fewer employees.
Two Banks of Leave
Under SPSL 2022, two banks of leave will be available. One bank of up to 40 hours will be available if an employee or a family member tests positive for COVID-19. Employees will have another bank of up to 40 hours for all other covered reasons. These other covered reasons are underlined below:
Quarantine or Isolation. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guideline 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. If the covered employee is subject to more than one quarantine or isolation order or guideline, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum time period under the order or guidelines that provides for the longest such minimum period.
Advice from Health Care Provider. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
Vaccination. The covered employee is attending an appointment for themselves or a family member to receive a vaccine for protection against contracting COVID-19.
Vaccine Symptoms. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
Symptoms. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Caring for a Family Member. The covered employee is caring for a family member, who is subject to an order or guidelines or who has been advised to self-quarantine.
School Closure Due to COVID on Site. The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
Amount of Leave
Employees who are considered full-time or work, on average, 40 hours per week, receive 40 hours of each type of leave, for a maximum of 80 hours of leave. Part-time employees receive a pro-rated version based on their regular schedule. Employees with variable schedules receive leave based on their average hours worked over up to a six-month lookback period (depending on length of employment).
Employers Can Request Some Documentation and Require Testing
Employees may only take up to 24 hours of paid leave per vaccine/booster injection unless the employee provides verification from a health care provider that the covered individual is continuing to experience symptoms related to the vaccine or booster.
When employees take leave due to their own COVID-19 diagnosis, or to care for a family member with COVID-19, employers may require documentation of the COVID-19 positive individual’s test. If an employee refuses to provide documentation, the employer does not need to provide the leave. The nature of the documentation employers are able to require is unclear at the moment. We are hoping the soon to be released FAQs provide some clarity.
In addition, if an employee tests positive, the employer may require the employee to submit to a diagnostic test on or after the fifth day and require documentation of results (but must make that test available at no cost to the employee).
Employers are required to issue retroactive payments to employees who took leave for a covered reason since January 1, 2022, upon written or verbal request by an employee. The retroactive payment has to be paid “on or before the payday for the next full pay period after the oral or written request of the covered employee.”
Wage Statement Requirement
As discussed above, there are two banks of leave available under SPSL 2022. Employers will be required to keep track of both banks to ensure that they are administering the leave properly.
SPSL 2022 requires that the employer “provide an employee with written notice that sets forth the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period in which it was due to be paid.” That notice can be provided via the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. The employer shall list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.
SPSL 2022 does not state whether the amount of hours used should be designated on a total basis or by bank. Either method is likely appropriate. Employers should be aware that failure to comply with this notice requirement could subject employers to penalties under the California Private Attorneys General Act.
Rate of Pay Aligns with California’s Regular Paid Sick Leave
Under SPSL 2022, the rate of pay is the same as California’s regular paid sick leave under Labor Code Section 246. Leave is to be paid at the regular rate during the pay period taken, or with a 90-day lookback (or, for exempt employees, their typical pay). An employer shall not be required to pay more than $511 per day and $5,110 in the aggregate.
No Cal/OSHA Earnings Continuation Relief
An employer cannot require covered employees to exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide earnings continuation under the Cal/OSHA ETS (i.e., exclusion pay). Employers cannot require any other type of leave to be used instead of, or before, SPSL 2022 paid sick leave.
Credit for Previously Provided Leave
Employers that have provided COVID-19 related leave for reasons covered by the new law in amounts equal to or greater than what the law requires can take credit for previously provided leave since January 1, 2022.
Expect a new model poster from the California Labor Commissioner to be published. This should be posted in the workplace and must be emailed to employees who do not frequent a workplace.
As the landscape of federal, state, and local COVID-related leave laws continues to change, employers must continue to modify policies and practices to ensure compliance. For more information on COVID-19 issues, please don’t hesitate to contact us.