California 2022 COVID-19 Supplemental Paid Sick Leave

As we previously announced, California is reintroducing COVID-19 Supplemental Paid Sick Leave in 2022 (“2022 SPSL”). The proposed Assembly Bill (“AB 84”) was published on February 2. You can read the full text of the bill here. AB 84 will add two new sections to the Labor Code, sections 248.6 and 248.7. The legislation will become effective 10 days after enactment, which is expected to occur soon. Please note that the new leave will be retroactive to January 1, 2022 and is supposed to expire September 30, 2022.

AB 84 “would provide for COVID-19 supplemental paid sick leave for covered employees who are unable to work or telework due to certain reasons related to COVID19, including that the employee is attending a COVID-19 vaccine or vaccine booster appointment for themselves or a family member, or is  experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster.” Now that the proposed bill has been published, we are addressing some of the common questions we have been getting regarding the forthcoming 2022 SPSL.

What employers and employees are covered? All employees who work in California for employers with more than 25 employees.

What qualifies as COVID-19 leave? Leave under 2022 SPSL is available when the employee is unable to report to the worksite or telework because:

• The employee is subject to quarantine or isolation related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace;
• The employee has been advised by a health care provider to isolate or quarantine due to COVID-19;
• The employee attending an appointment for their own, or a covered family member’s, vaccine appointment, including a booster vaccine;
• The employee is absent due to COVID-19 symptoms or to care for a family member experiencing symptoms related to a COVID-19 vaccine or booster;
• The employee is experiencing COVID symptoms and seeking a medical diagnosis;
• The employee is needed to care for a family member who is subject to an order, guidance, or advised to isolate or quarantine; or,
• The employee is needed to care for a child whose school or childcare facility is closed or unavailable due to COVID-19 on the premises.

Who is a qualifying family member? A child (biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis, regardless of age or dependency status), parent (biological, adoptive, 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), spouse, registered domestic partner, grandparent ,grandchild, or sibling.

How much time off are employees entitled to? The available leave comes in two different banks of leave:

• an initial bank of up to 40 hours without documentation of need,
• and a second bank of up to 40 hours with documentation of need.

Full-time employees, or those who have worked or were scheduled to work, on average at least 40 hours per week during the preceding two weeks, are entitled to 40 hours of 2022 SPSL. Part-time employees are entitled to 2022 SPSL based on the total number of hours the employee is normal scheduled to work during one week, or if that number varies, then seven times the average number of hours worked each day for the employer in the six months preceding the first date of leave. If the employee works a variable number of hours per week and has worked seven days or less for the employer, then the employee is entitled to 2022 SPSL for the same number of hours worked for the employer.

If the employee or the family member the employee is caring for tests positive for COVID-19, the employee is entitled to an additional bank of hours equal to those he was initially entitled to; i.e., up to 40 hours. Employers cannot require employees to use other available leave (sick leave, vacation, etc.) before receiving or in lieu of SPSL, however employees may request to use such other leave.

Furthermore, employees can not be required to exhaust their SPSL as a requirement for other available COVID-19 paid leave such as Cal/OSHA exclusion pay. Certain other supplemental leave may run concurrently with 2022 SPSL.

For vaccine and booster related leave, an employer may limit the total COVID-19 supplemental paid sick leave to 3 days or 24 hours, including the time to receive the vaccine or booster, 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. This limit applies to each vaccine or booster related leave.

Can I require proof that the employee’s leave qualifies? The employer can require proof of the employee’s or family member’s positive test, prior to paying the additional (second bank) leave. If the employee refuses to provide documentation, the employer is not obligated to provide the additional paid sick leave. The employer can also require the employee or family member to submit to a test on or after the fifth day after the initial positive test and provide the results of such follow-up test, but such testing must be at no cost to the employee. The bill is silent as to an employer’s right to request proof of attending a vaccination appointment, however, employers can request proof of vaccination, so it seems that proof of attending the appointment would be acceptable. We expect that a series of FAQs will be provided and that it may address that issue.

How is the SPSL compensated? For exempt employees, it is calculated the same as “wages for other forms of paid leave time.” For non-exempt employees, the SPSL is calculated either: (1) in the same manner as the regular rate of pay for the workweek that the employee uses sick time; or (2) by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. If the employee is paid by piecerate or commission, then the total wages, not including overtime premium pay, should be divided by all hours worked. Just like prior SPSL, the bill provides for a cap of $511 per day and $5,110 in the aggregate to a covered employee.

How will 2022 SPSL be enforced? The Labor Commissioner is authorized to enforce SPSL.

How do I decide which employees need retroactive payment? Employers will need to make the sick leave available immediately to covered employees, but it is up to the employee to request to be paid for the leave and to determine how many hours, based on their entitlement, they would like to be paid or if they would like to wait in case they need them later in the year. 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.” If you have provided paid leave prior to the effective date of the bill, you will get credit for such payments as complying with the bill

Do I notify employees of this benefit? Yes, employers must notify employees of the available benefit. The Labor Commissioner is mandated to provide a model policy which employers must disseminate to employees, including by mailing notice to employees who do not frequent the worksite. Furthermore, employers must list the total number of SPSL that the employee has used as a line item on employee wage statements. Please note that this is different from most situations where you list the amount that the employee has available. Here, you must list the amount they have actually used. Thus, if an employee has not yet used any leave, their statement must list “zero.”

What This Means for Employers: Soon enough employees may be entitled to up to 80 hours of paid sick leave for COVID-19 related reasons, in addition to potential “exclusion pay” under the Cal/OSHA ETS. The SPSL, which applies retroactively back to January 1, 2022 can only be used once, so employees who exhaust their leave are not entitled to any additional paid sick leave, except for qualifying exclusion pay under Cal/OSHA and regular paid sick leave under Labor Code section 246. Employers should begin gearing up to update policies, establish a point person to field employee requests and questions, and establish a procedure for ensuring the proper and prompt calculation of eligible pay and payment to employees. Employers should also consult with their tax advisors about the proper record keeping for available credit or small business grants which may be available.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.