As has been in the recent news reports, on January 25, 2022 Governor Newsom announced that California will be implementing a new version of Covid-19 Supplemental Paid Sick leave (SPSL). While the final terms of the bill have not been announced, based on the draft legislation, here is what we know so far…..which could change with any revisions made prior to passage….

Effective Date: Once passed, which is expected very soon, employers will have 10 days to implement the paid sick leave program. The benefits will be retroactive to January 1, 2022, and the plan will expire on September 30, 2022.

Covered Employers: An employer that employs more than 25 employees.

Covered Employees:  Generally, an employee who is unable to work or telework for an employer because of a qualifying reason (see below).

Leave Available:  There will two banks of leave of up to 40 hours each. One bank will be available if an employee or a family member tests positive. The second bank will be for employees for other qualifying reasons detailed 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 guidelines 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.
  • Vaccine Appointment.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.
  • COVID-19 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-19 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: The total possible amount of leave available to an employee is 80 hours between January 1 and September 30, 2022. If an employee has 2 qualifying events, but has already used their allotted SPSL, they are not entitled to a second round of benefits.

The leave is available in two separate increments based on the reason for the leave so it is not guaranteed that an employee will be entitled to all 80 hours.

  • Full time employees:Employees who are considered full time or work, on average, 40 hours a week for the two weeks preceding the date the covered employee took COVID-19 SPSL, receive 40 hours of each type of leave, for a maximum of 80 hours of leave.
  • Part time employees:  Employees are entitled to receive a pro-rated amount based on their regular schedule:
    • Regular Part Time Schedule: If the covered employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work for the employer over one week.
    • Variable Schedule: If the covered employee works a variable number of hours, the employee is entitled to receive an amount equal to seven times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave.
      • If the covered employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation shall instead be made over the entire period the covered employee has worked for the employer.
    • Additional 40 Hours of Leave: An employee will be entitled to receive an additional amount of leave equal to that the employee is entitled to if they are full or part time (as defined above) if the covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19. This additional leave is available even if the employee has not used the SPSL described above.
  • Documentation and Testing:   Employers may require the employee to provide documentation of the employee’s COVID-19 positive test.  The employee may also be required to provide documentation of the test for the family member they are caring for as a condition of receiving SPSL.
    • Refusal to Provide Documentation:If an employee refuses to provide appropriate documentation, the employer does not need to provide the paid leave. The form of documentation employers are able to require is not defined and will likely be clarified when FAQs are released.
    • If the employee tested positive, an employer may require the employee to submit to a diagnostic test on or after the 5th day after the test was taken and provide documentation of those results. The employer shall make such a test available at no cost to the employee.  (This seems to imply that the test is to be provided at no cost even if this is not a workplace exposure.)

Use of SPSL: The employer shall make COVID-19 supplemental paid sick leave available for immediate use by the covered employee, upon the oral or written request of the covered employee to the employer.

Retroactive Effect: 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.”

Impact on Other Sick Leave Entitlements:   An employer shall not require an employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the employee before the covered employee uses SPSL or in lieu of SPSL.

Credit For Other Paid Sick Leave Paid: Employers that have provided COVID-19 related leave for reasons that are covered by the new SPSL in amounts equal to or greater than what the new SPSL requires can take credit for previously provided leave retroactive to January 1, 2022.

Wage Statement Requirement: Employers need to list the amount of leave that has been used. So if an employee has not yet used any leave, their statement must list “zero.”  (This is a different rule than in the prior SPLS which required the amount of available leave to be displayed.)

Rate of Pay:  Employees are to be paid their “regular rate of pay” during the pay period taken, or with a 90 day lookback (or, for exempt employees, their typical pay). The cap on SPSL remains the same as in the previous law – a daily cap of $511.

Notice Requirement: The Labor Commissioner is required to publish a model notice for this SPSL which will be required to be posted at the workplace.  If employees are not regularly at the worksite, the employer may send employees the notice electronically.

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