California: New 2022 COVID-19 Supplemental Paid Sick Leave
By Swerdlow Florence Sanchez Swerdlow & Wimmer
February 17, 2022
On February 9, 2022, California Governor Gavin Newsom signed Senate Bill (SB) 114, to implement new COVID-19 Supplemental Paid Sick Leave (“2022 SPSL”), effective February 19, 2022.
Covered Employers and Effective Period
2022 SPSL applies to all employers with 26 or more employees and is retroactive to January 1, 2022. It remains in effect through September 30, 2022.
Two Leave Banks
The maximum potential amount of 2022 SPSL a full-time employee can receive is 80 hours, split into two 40-hour leave banks. Part-time employees receive a pro-rated amount of leave based on their regular weekly schedule.
The 2022 SPSL calls for two separate leave banks to be available to employees. The first bank of up to 40 hours is available if an employee tests positive for COVID-19 or is caring for a family member (child, parent, grandchild, grandparent, sibling, or spouse) who tested positive for COVID-19, and is unable to work or telework.
The second bank of up to 40 hours is available for employees who are unable to work or telework for any of the following covered reasons:
• The employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state, or local orders or guidance.
• The employee is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19.
• The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster.
• The employee or a family member for whom the employee is caring is experiencing symptoms as a result of a vaccine or booster that prevents the employee from being able to work or telework.
• The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
• The employee is caring for a family member who is required to quarantine or isolate due to a federal, state, or local orders or guidance or by a health care provider due to concerns related to COVID-19.
• The 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.
Employees may determine how many hours of 2022 SPSL to use for a covered reason, up to the total number of hours to which the employee is entitled. However, employers can limit time off for a COVID-19 vaccine or booster shot to three days or 24 hours, unless the employee provides verification from a health care provider that the employee or family member is continuing to experience symptoms related to the vaccine or booster. This time includes time spent attending an appointment to receive a vaccine or booster and/or for symptoms resulting from a COVID-19 vaccine or booster shot for each vaccine/booster received.
The amount of 2022 SPSL is capped at $511 per day and $5,110 overall.
When employees take leave from bank one 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 result. In addition, employers may require employees who test positive to submit to a diagnostic test on or after the fifth day after the first test was taken and provide documentation of those results. The test should be made available at no cost to employee. If the employee refuses to provide documentation of the test result, the employer has no obligation to provide 2022 SPSL.
Employers are required to a post a notice about the 2022 SPSL. In the coming days, the state labor department is expected to release a publicly available model poster, which employers can display in the workplace to satisfy this requirement.
Beginning with the first full pay period following February 19, 2022, employers must list the number of 2022 SPSL hours used on employee paystubs or other written itemized pay statements provided to employees on the employee pay dates. The number listed shall be zero hours if the employee has not used any 2022 SPSL. This differs from prior versions of the COVID-19 supplemental leave laws that required employers to include the amount of leave available on each paystub. Used 2022 SPSL should be listed in addition to the regular paid sick leave available.
Interaction with Other Leaves
Unlike prior versions of COVID-19 supplemental sick leave, an employer cannot require covered employees to first exhaust their 2022 SPSL before satisfying the requirement to provide earnings continuation under the Cal/OSHA ETS. Therefore, employers must provide wage and benefit continuation to any employee who contracts COVID-19 at work or is excluded from work due to a workplace exposure without subtracting any available leave from the employee’s 2022 SPSL. In addition, employers cannot require any other type of leave to be used instead of, or before, 2022 SPSL.
Similar to prior COVID-19 supplemental sick leave requirements, 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 must be paid “on or before the payday for the next full pay period after the oral or written request of the covered employee.”
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The twists and turns of California’s response to the COVID-19 pandemic are difficult to navigate. Contact SFSS&W if you have any questions regarding the California 2022 Supplemental Paid Sick Leave law and its impact on your workplace.