SPSL REQUIREMENTS REMAIN THE SAME
AB 152 will require employers with more than 25 employees to provide SPSL for an additional three months – through December 31, 2022. However, it does not entitle employees to a new bucket of leave provided under current SPSL requirements, nor does it change the qualifying reasons for which employees may use SPSL – e.g., the two buckets of 40 hours of paid time off for qualifying reasons with a maximum of a total of 80 hours if both buckets are used. These provisions remain the same.
A ”covered employee” remains someone who is unable to work or telework for an employer because of a qualifying reason – which reasons remain the same under the prior bill:
The Covered employee:
(A) is subject to a quarantine or isolation period related to COVID-19;
(B) has been advised by a health care provider to isolate or quarantine due to COVID-19;
(C) is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to the limitation in clause (ii) of subparagraph (D).
(D) (i) 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.
(ii) For each vaccination or vaccine booster, an employer may limit the total COVID-19 supplemental paid sick leave to 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. The 3-day or 24-hour limitation applied to each vaccine or vaccine booster includes the time used under subparagraph (C) to get the vaccine or vaccine booster.
(E) is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(F) is caring for a family member who is subject to an order or guidance described in subparagraph (A) or who has been advised to isolate or quarantine, as described in subparagraph (B).
(G) is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
Also there is no change to the requirement that a covered employee is not required to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.
DOCUMENTATION AND TESTING
AB 152 does provide employers with a few employer-friendly changes.
- An employer has no obligation to provide additional COVID-19 SPSL if the employee refuses to submit to a test.
- If an employee tests positive and the employer requires the employee to submit to a diagnostic test which demonstrates a positive result, the employer may then require the employee to submit to a second diagnostic test within no less than 24 hours. The employer is required to provide both tests at no cost to the employee.
- An employer does not have any obligation to provide additional COVID-19 supplemental paid sick leave if the employee refuses to provide documentation of a test result.
- The covered employee, if that employee tests positive, can be required to submit to another test on or after the 5th day after the first positive test and provide documentation of those results. The employer must provide the test at no cost to the employee.
EXTENSION OF BENEFITS FOR PERSONAL CARE PROVIDERS
AB 152 will also extend COVID-19 supplemental paid sick leave for specified in-home supportive service providers and personal care service providers to December 31, 2022.
LOCAL SPSL ORDINANCES
Employers must also keep in mind that there are a few local jurisdictions in California with their own SPSL ordinances that are tied to their respective COVID-19 emergency declaration period. If you are in any of these jurisdictions, you may count leave provided under one of these local ordinances toward your SPSL obligation under AB 152 so long as the leave was provided for the same reasons and compensates the employee in an amount equal to or greater than what is required under AB 152.
RELIEF GRANT PROGRAM
California Small Business and Nonprofit COVID-19 SPSL Relief Grant Program has been created to assist qualified small businesses or nonprofits that are incurring costs for SPSL up to $50,000. It will be repealed on January 1, 2024, however.
To qualify for the SPSL Relief Grant, the business or nonprofit must meet all of the following criteria:
- Is a “C” or “S” corporation, cooperative, limited liability company, partnership, limited partnership, or a registered 501(c)(3), 501(c)(6), or 501(c)(19);
- Began operating before June 1, 2021;
- Is currently active and operating;
- Has 26 to 49 employees and provides payroll data and an affidavit attesting to that fact;
- Has provided SPSL pursuant to the requirements of Lab. Code §§ 248.6 and 248.7; and
- Provides organizing documents.
There are a number of exemptions that exclude certain businesses or nonprofits from being eligible for SPSL Relief Grant.
As the guidance issued by the state and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2022.