New California COVID-19 Supplemental Paid Sick Leave Law of 2022
The New California Additional Paid Sick Leave COVID-19 2022 (“SPSL”) came into effect on February 19, 2022, requiring covered employers to re-grant workers additional paid sick leave related to COVID-19. While some of the provisions of the 2022 SPSL Act are similar to those of the state’s prior SPSL Act which expired in September 2021, there are also differences between the two statutes. Therefore, it is important for employers to familiarize themselves with the new law and formulate new policies, rather than simply relying on their past policies and practices.
In summary, the SPSL Act of 2022 requires all private and public employers with 26 or more employees, including those with collective bargaining agreements, to provide covered employees with up to 80 hours of paid sick leave related to COVID-19 from January 1, 2022 to September 30, 2022. The California Commissioner of Labor released FAQs to help clarify parts of the SPSL and a required information poster (in both English and Spanish) that employers are required to place in the workplace where employees can easily read it. If covered employees do not frequent the workplace, employers can distribute the required posters electronically.
Below is a summary of some of the key provisions of the SPSL Act 2022 that apply to employers generally. Although not the subject of this notice, some employers should be aware that the SPSL Act 2022 also contains special provisions applying to firefighters and home support and/or personal care providers. .
Definition of “covered employees”
A covered employee is any employee who is unable to work or telecommute due to one of the reasons specified by law related to COVID-19, as set out below. SPSL is not available to independent contractors. However, the Commissioner of Labor specifically warned employers in the FAQ that any worker who has been wrongly classified as an independent contractor, but is in fact an employee otherwise covered by the new law, is entitled to the SPSL.
Reasons qualifying for SPSL
The SPSL 2022 law provides for two separate banks of leave, each allowing up to 40 hours, for a potential of 80 hours of leave for full-time employees. Which of the two leave banks that applies depends on the reasons why the paid leave is needed, and those reasons are broader than those permitted under previous law.
SPSL’s first bank is available to covered employees who are unable to work or telecommute for one of the following reasons:
- Take care of yourself: The covered employee is (i) subject to a period of quarantine or isolation related to COVID-19 (as defined by order or guidance from the state Department of Public Health, Centers for Disease Control and Prevention or a local public health officer who has jurisdiction over the workplace), (ii) has been advised by a health care provider to self-isolate or quarantine due to COVID-19 , or (iii) exhibits symptoms of COVID-19 and requires a medical diagnosis.
- Caring for a family member: The covered employee (i) is caring for an eligible family member who is subject to a period of quarantine or isolation related to COVID-19 (as defined by an order or direction from the Department of ‘State of Public Health, the Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace), or has been advised by a health care provider to self-quarantine due COVID-19, or (ii) is caring for an eligible child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
- Vaccine-related: Covered employee or eligible family member shows up for a vaccination appointment or cannot work or telework due to vaccine-related side effects.
SPSL’s second bank is available to covered employees who are unable to work or telecommute because they or an eligible family member to whom they provide care tests positive for COVID-19.
“Family member” and “Child” defined
Similar to the earlier SPSL Act, an eligible “family member” under the SPSL Act of 2022 includes a child, parent, spouse, registered domestic partner, grandparent, grandchild or sibling. or a sister. A “child” may include a biological, adopted or adoptive child, stepchild, legal ward or child to whom the employee stands in loco parentis. A “relative” includes a biological, adoptive or adoptive parent, step-parent or legal guardian of the employee or of the spouse or registered domestic partner of the employee or of the person who was in loco parentis when the employee was a minor child.
Retroactive PSSL for leave taken between January 1, 2022 and February 19, 2022
Although SPSL 2022 came into force on February 19, 2022, the requirement to provide SPSL is retroactive to January 1, 2022. This means that a covered employee who took qualifying leave between January 1, 2022 and February 19 2022, but who was not paid the amount required under this Act, has the right to ask the employer for a “retroactive” payment equal to the amount required. This “retroactive” payment is only required if the covered employee makes an oral or written request on or after February 19, 2022 to be paid for qualifying leave.
If the employee requesting retroactive SPSL has been fully paid, but their prior leave was deducted from another bank of leave provided by the employer, the employee may request that the leave deducted from the non-SPSL bank be reinstated and the holdback be made to the SPSL leave the bank. The FAQs state that the decision to restore used time is the employee’s decision.
Time of availability of leave
The employer must immediately make the SPSL available to a covered employee upon his oral or written request. The leave itself is not conditional on the employee providing a medical certificate. However, payment for leave taken may be subject to the presentation of documentation in certain circumstances, as discussed below.
Request documents before paying the covered employee
There are several situations where an employer may request documents from an employee before paying them paid sick leave.
First, the SPSL Act 2022 allows the employer to request documentation if an employee is using the SPSL which is only available after a positive test. In such circumstances, the employee must provide the test results upon reasonable request by the employer. If the employee does not provide the test result, the employer may refuse to pay for any leave taken.
Second, when an employee uses more than three days or 24 hours off for a single vaccination appointment and to recover from any related side effects, an employer may request a medical certificate stating that the employee needed more time to recover. The FAQ clarifies that the medical certification in this context would likely be a note from a healthcare provider that the employee or family member continues to have side effects from the vaccine.
Third, an employer can also request documentation when the employee is requesting retroactive pay for leave taken due to the employee or a family member testing positive for COVID-19. According to the FAQ, this documentation could include, among other things, a medical record of the test result, an email or text from the test company with the results, a photo of the test result or a text or email contemporary. letter from employee to employer indicating that the employee or an eligible family member has tested positive for COVID-19.
Finally, the Commissioner of Labor recognizes that it may be reasonable in certain circumstances to request documentation before paying sick leave where the employer has information indicating that the covered employee is not requesting SPSL for a valid reason. An example of such reasonable circumstances, as discussed in the FAQs, is when a covered employee tells an employer that they must stay home due to a local quarantine order or recommendation, but the employer later learns that the covered employee has been to a ballpark.
Payment term for SPSL
For SPSLs taken on or after February 19, 2022, the employer must remit payment on or before the payday for the next regular pay period following sick leave.
For retroactive SPSLs taken between January 1, 2022 and February 19, 2022, the employer will have until the payday of the next full pay period following the employee’s retroactive SPSL request to pay the retroactive SPSL.
Detailed or separate written payslips
Employers are required to provide covered employees with written notice of the amount of SPSL they have used during the pay period in which it was to be paid on the employee’s itemized wage statement or in writing separate provided on the designated payslip. date of payment of the employee’s salary. This differs from previous law which required the pay stub to show the number of hours available for use. If no hours have yet been used by the employee, the pay stub or other writing issued at the time of payment of wages must indicate a “0”.
For retroactive SPSLs, the number of SPSL hours used must be shown on the detailed pay statement or on a separate writing provided on pay day for the next full pay period after the employee’s request for retroactive SPSL .
Record keeping requirement
Employers are also required to keep records for a period of three years of SPSL days accrued and used. These records must also be made available to the labor commissioner or the employee upon request.
What should employers do now?
- Employers should familiarize themselves with the SPSL Act of 2022 and develop new policies and practices that comply with the new law.
- Employers should update their detailed pay stubs to include a separate line that discloses the amount of SPSL employees used during the pay period in which it was due to be paid. Alternatively, employers can develop a separate writing that provides this same information as long as it is provided to employees on the designated pay date with payment of employee wages.
- Employers should properly post the required notice in a place in the workplace where employees can easily read it. If covered employees do not frequent the workplace, employers should distribute the required posters electronically.
- Employers should check the Labor Commissioner’s FAQ for updates. As the SPSL Act of 2022 continues to develop, we suspect that the Commissioner of Labor may periodically update the FAQ to address new areas requiring clarification, which he did under the previous SPSL Act.