Yesterday Governor Newsom signed a new COVID-19 Supplemental Paid Sick Leave (SPSL) bill into law. The new SPSL obligations will take effect on February 19, 2022. The law requires covered employers to provide SPSL to employees retroactive to January 1, 2022 and through September 30, 2022. This bulletin explains the law’s requirements.
A. Employers Covered by the new SPSL
The law applies to all employers that employ 26 or more workers.
B. Qualifying Reasons to Take SPSL
The law requires that covered employers provide SPSL to any employee who cannot work or telework due to one or more of the following COVID-19-related reasons:
1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the California Department of Public Health (“CDPH”), the federal Centers for Disease Control and Prevention (“CDC”), or a local public health officer who has jurisdiction over the workplace.[1]
2. A health care provider has advised a covered employee to isolate or quarantine due to COVID-19.
3. The covered employee is attending an appointment for themselves or a family member[2] to receive a vaccine or a vaccine booster for protection against COVID-19.[3]
4. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.[4]
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who:
A. Is subject to a CDPH, CDC, or local health officer order or guidance to isolate or quarantine, OR
B. Has been advised by a health care provider to isolate or quarantine.
7. 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.
8. The covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.
C. Amounts of SPSL Available to Covered Employees
The law provides a total of 80 hours of SPSL for employees who work at least 40 hours a week or are otherwise considered full time.[5] Part-time employees receive a prorated amount of leave. 40 hours of SPSL is available for full-time employees for qualifying reasons 1 through 7 above. If the employee or a family member the employee is caring for tests positive for COVID-19 (qualifying reason 8 above), the full-time employee is eligible for another 40 hours of SPSL. Therefore, it will be important for employers to ascertain the specific qualifying reason for the employee’s leave in order to deduct SPSL from the appropriate leave bank and properly record the leave. The new law does not require employees to exhaust SPSL for reasons 1 through 7 before the employee uses SPSL for reason 8. Employers must track the two leaves separately.
Employers must provide SPSL immediately upon oral or written request, but may withhold payment for the usage of leave for qualifying reason 8 in the event that the employee does not provide test results, as described below.
D. Requirements to Produce COVID-19 Test Results to Confirm Leave Entitlement
If an employee requests SPSL because the employee or a family member the employee is caring for has tested positive for COVID-19, the employer may require that the employee provide the employee’s or the family member’s positive test result to confirm that the employee qualifies for such leave. If an employee refuses to provide the initial positive test result, then the employer has no obligation to provide SPSL. While the new law does not specify which, if any, COVID-19 tests are preferred or prohibited for this purpose, a documentation of the test result produced by a third party will ensure that employers remain in compliance with the regulatory requirements for tests under the Cal/OSHA Emergency Temporary Standard (“ETS”).[6]
An employee taking leave because of a positive COVID-19 test may be required to test again five days or more after the initial positive test. For the purpose of potentially discontinuing isolation after a positive COVID-19 test, both the CDPH and DIR state a preference for antigen tests to determine an individuals’ COVID-19 status. While neither the CDPH nor DIR require that the COVID-19 test be administered by an independent third party, employers may consider disallowing self-administered and self-read tests (e.g., at-home tests) and requiring that employees provide documentation of the negative test result prepared by an independent third party before returning to work. Under existing isolation guidance from the CDPH and the Department of Industrial Relations (“DIR”), employees who test negative for COVID-19 on or after day five and who do not present COVID-19 symptoms may end their isolation periods and return to work. Employers should note that if they require an employee to test on or after day five, then the employer must provide the test “at no cost to the employee.”
E. Compensation for Use of SPSL
The law requires that employers provide compensation to nonexempt employees based on their regular rate of pay or total wages exclusive of overtime premium pay. For exempt employees, employers must calculate the compensation as they would for other forms of paid leave time. However, employers are not required to pay employees more than $511 per day when using SPSL and not more than $5,110 in total. If an employee’s regular compensation exceeds $511 per day, the employee may elect to supplement the SPSL maximum pay amount with other accrued, paid leaves to make up the difference in pay.
F. Employers Are Not Authorized to Require that Employees Use SPSL when Excluded from the Workplace under the Cal/OSHA ETS
The law expressly prohibits employers from requiring that employees use SPSL when excluded from the workplace due to having been exposed to COVID-19 at the workplace. As a result, employers that are required to exclude employees from the workplace pursuant to the Cal/OSHA ETS regulatory requirements must continue the employee’s regular compensation during the applicable quarantine and/or isolation period and may not require the employee to use their SPSL entitlement.
G. Notice and Posting Obligations
The law requires employers to provide employees a “written notice” that includes the amount of SPSL that an employee has used through the pay period. Employers may satisfy the notice requirement by listing the SPSL amount separately on an employee’s itemized wage statement or providing such information in a separate writing on employees’ paydays. Furthermore, employers must post information about SPSL in the workplace. The Labor Commissioner will be providing a model notice that employers may use. If employees do not frequent the workplace, employers may send the information via email.
H. Retroactivity
SPSL will apply retroactively to cover leave taken by employees on or after January 1, 2022 that would otherwise have qualified for such leave. In other words, if an employee was unable to work or telework due to one of the eight qualifying reasons enumerated above and used another paid leave (or went without pay), the employee may request that the employer apply SPSL retroactively and have the other leave balance restored.
The SPSL obligations will remain in effect through September 30, 2022, but will continue after that expiration date in instances where an employee is using the leave on September 30 and continues to use such leave without interruption.
Liebert Cassidy Whitmore attorneys are familiar with obligations created by SB 114. Should you have any questions about this new legislation and its potential effect on your school or non-profit organizations leave policies and practices, please do not hesitate to contact the firm.
[1]If multiple isolation or quarantine periods apply, the employee may use SPSL for the minimum amount of time required by the longest isolation or quarantine period.
[2] A “family member” includes an employee’s child, a parent, spouse, registered domestic partner, grandparent, grandchild, or sibling. A “child” is a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. A “parent” includes a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child. (Labor Code § 245.5, subd. (c).)
[3] The employer may limit the total SPSL used for each vaccination or booster to three (3) days or 24 hours, unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.
[4] Employers may apply the same limitation of three (3) days or 24 hours’ SPSL in this situation, unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.
[5] If an employee has a variable schedule, then the employer must calculate the average number of hours the employee worked each workday over the last six months and multiply the result by 7 to get the amount of SPSL for qualifying reasons 1 through 7, and again for qualifying reason 8.
[6] The Cal/OSHA ETS prohibits the use of self-administered and self-read tests for purposes under those regulations. 8 C.C.R. § 3205(b)(6)(C).