The Division of Labor Standards Enforcement has issued its FAQ’s which provides clarification and further explanation as to the implementation of the 2022 Covid-19 Supplemental Paid Sick Leave (SPSL) benefits. The FAQ’s address the following topics which are summarized below:
FAQ’s 1-3: The law covers both public and private employers with 26 or more employees, including those covered by a Union Collective Bargaining Agreement. Independent contractors are not covered by the law and not entitled to SPSL. Employees who received SPSL benefits under the prior law are also entitled to SPSL under the 2022 law.
FAQ’s 4-6: Reasons for Taking Leave: There are two banks of up to 40 hours each of time off.
- Bank #1:Up to 40 hours of SPSL is available to covered employees unable to work or telework due to any one of the following reasons:
- Caring for Yourself:The covered employee is (a) subject to a quarantine or isolation period related to COVID-19 (see note below), or (b) has been advised by a healthcare provider to quarantine due to COVID-19, or (c) is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a Family Member:The covered employee is (a) caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 (see note below) or (b) has been advised by a healthcare provider to quarantine due to COVID-19, or (c) the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises. See FAQ 6 for the definition of family member and child.
- Vaccine-Related:The covered employee or a qualifying family member is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.
NOTE: The quarantine or isolation period is the period defined by an order or guidance of the CDPH or CDC or a local public health officer with jurisdiction over the workplace.
- Bank #2: Up to 40 hours of SPSL is available only if (1) an employee or (2) a family member for whom they are providing care tested positive for COVID-19.
- School Closure: Means a child’s classroom in school or place of care was closed on or after January 1, 2022, due to a concern that a person who had been present on the school or daycare premises was exposed to, or had contracted, COVID-19.
Family Members & Child Defined:
- A family member includes a child, parent, spouse, registered domestic partner, grandparent, grandchild, or sibling.
- A child can include a biological, adopted, or foster child, a step-child, legal ward, or child to whom the employee stands in loco parentis.
- A parent includes a biological, adoptive, or foster parent, step-parent, or legal guardian of the employee or the employee’s spouse or registered domestic partner or person who stood in loco parentis when the employee was a minor child.
FAQ #7: Is a covered employee eligible for SPSL if someone with whom the covered employee lives is exposed, experiences symptoms, or is diagnosed with COVID-19?
This FAQ seems to ask whether an employee would be eligible if a non-family member was exposed, experiences symptoms or is diagnosed…the answer simply reiterates that an employee is eligible if the employee is “caring for a family member” – and based on the definition of “family member (above) it would not seem to cover roommates or other non-familial relationships
START & END DATES
FAQ’s #10 -11 The law is retroactive to January 1, 2022 and extends through September 30, 2022. The law does not become effective until February 19, 2022, at which time the law’s retroactivity becomes effective. This means that covered employees who took qualifying leave between January 1, 2022, and February 19, 2022, can request payment for that leave if it was not paid by the employer in the amount that is required under this law.
If a covered employee is taking SPSL leave as of September 30, 2022, the employee can finish taking the amount of 2022 COVID-19 SPSL they are entitled to receive.
#12-When is Leave to be made available: An employer must, immediately upon the oral or written request of a covered employee provide payment of SPLS “conditioned upon proof in certain circumstances described in FAQ’S 14 and 19-20.
#13-Requesting Retroactive Leave: If the covered employee took leave between January 1, 2022, and February 19, 2022, for qualifying reasons under this new law (see FAQ 4) but was not paid for this leave in the amount required under this law (see FAQs 15-18, 30), then the covered employee has the right to ask the employer for a “retroactive” payment equal to the amount required.
After the employee makes the request, the employer will have until the payday for the next full pay period to pay the “retroactive” 2022 COVID-19 Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2022 COVID-19 Supplemental Paid Sick leave hours have been used by the covered employee.
#14-Can an employer require documentation if an employee is requesting retroactive pay that is available only if the employee or qualifying family member was positive for COVID-19?
Yes, if the employee is requesting retroactive pay for leave that is available only if the employee or qualifying family member was positive for COVID-19, an employer may request documentation. This documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.
If retroactive payment is being sought from the hours that an employee may use for any other qualifying reason, please see FAQs 19-20 below concerning requesting documentation under the statute in general.
CALCULATING HOURS OF LEAVE
#15-How Much Leave: A full time employee or one who worked or was scheduled to work an average of at least 4 hours in the two weeks before the leave was taken is entitled to up to 80 hours of leave, comprised of the two banks of 40 hours for the stated qualifying reasons.
#16-Are the Banks of Leave Consecutive: An employee does not have to exhaust the 40 hours in Bank 1 to qualify for the hours in Bank 2 or visa versa. The banks of time are not consecutive – the exhaustion of one is not required before using the other bank of time.
#18-How Much Leave for Part Time Employees: The FAQ’s explain how to calculate the leave depending on whether the part time employee has a set schedule or variable hours. The FAQ’s provide a few examples of how to determine the correct number of hours.
PERMISSIVE LIMITS ON USE AND VERIFICATION
#19-Certification from Health Care Provider: An employer cannot require a medical certification before granting leave. an employer may not deny SPSL based on a lack of medical certification. The leave is NOT conditioned upon a medical certification.
However, it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the covered employee is not requesting 2022 COVID-19 Supplemental Paid Sick leave for a valid purpose. In any such claim, the reasonableness of the parties’ actions will inform the outcome of the claim.
#20 Documentation May be Requested: The law permits the employer to seek documentation before paying an employee if an employee is using the SPSL that is only available after a positive test. The employee must provide the test results upon the reasonable request of the employer. If the employee fails to provide the result of the test, then the employer may deny pay for any leave taken.
Also, when an employee uses more than three days or 24 hours for a single vaccine appointment and recovery from any related side effects, an employer may seek medical certification that the employee required more time to recover from those side effects. Medical certification in this context would likely be a note from a health care provider that the employee or family member continued to have vaccine side effects. See FAQ 23 below.
#21-Is a Specific Test Required: NO. An employee may take an over-the-counter rapid test (Antigen) or a test that is scheduled at a testing facility. The law does not specify type of test and does not place conditions on how the test is administered in order to qualify for leave.
#22-An employer can require an employee to get a COVID-19 test in certain circumstances. The law provides an employer may require a test after 5 days have passed since the employee tested positive for COVID-19. If the employee fails to take such a test required by the employer, the employer may deny pay for any leave taken after the time the employer provides the test. Any test required by the employer must be made available by the employer and at no cost to the employee. Making a test available means ensuring the employee has a rapid test in hand or securing an appointment at a testing facility for the employee. A test has not been made available by the employer if it has not been received by the employee.
#25-Credit for Retroactive Payments: The number of hours of leave corresponding to the amount of the retroactive payment counts toward the total number of hours of SPLS that the employer is required to provide to the covered employee (see FAQs 15-18), under the following circumstances:
- The retroactive payment is for leave taken by the covered employee between January 1, 2022, and February 19, 2022.
- The leave taken by the covered employee was for one of the qualifying reasons under the 2022 COVID-19 Supplemental Paid Sick Leave law (see FAQ 4), and
- The retroactive payment by the employer pays the covered employee the amount required under the 2022 COVID-19 Supplemental Paid Sick Leave law (see FAQs 15-18, 30).
#29-If another type of leave was used, can the covered worker get that leave credited back and the leave taken for a purpose under the new law debited?
Yes, the new law is explicit in stating that if an employee was fully paid but leave for the absence was deducted from another leave bank that the employer provides, the employee may request that leave be restored, and the deduction be made in a corresponding amount from the employee’s 2022 SPSL leave bank. The decision to restore used time is the employee’s decision.
PAYMENT OF LEAVE, RECORD-KEEPING AND PAYSTUBS
#30-Rate of Pay:
- Non Exempt: The FAQ’s explain a non-exempt covered employee is entitled to receive either their regular rate of pay for the workweek in which the leave is taken or a rate calculated 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 of the prior 90 days of employment, provided that, for nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, non-overtime wages shall be divided by all hours
- Exempt employees are paid in the same manner as the employer calculates wages for other forms of paid leave time.
- Cap On Payment: An employer is not required to pay more than $511 per day and $5,110 in the aggregate, but the covered employee may utilize other paid leave that may be available in order to receive what they would normally earn if the cap is reached.
#31-SPLS must be listed separately from regular Paid Sick Leave on the itemized paystub or separate writing at the time wages are paid. This ensures covered employees understand how many separate hours they have used not the amount that is available to use. If no hours have yet been used then the paystub or other writing issued at the time wages are paid must indicate 0.
Records must be kept for a three-year period as to the days accrued and used, and that the records be made available to the Labor Commissioner or employee upon request.
#32-Employers must provide notice: Employers are required to display the required poster about SPSL in a place at the worksite where employees can easily read it. If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.
#34-Rights of a covered employee: Covered employees using or attempting to exercise their rights are protected from retaliation under Labor Code section 246.5(c). In addition, other labor laws may protect covered employees from retaliation in this situation.
RELATION TO OTHER LAWS
#36-Can employers require employees to use SPSL in lieu of exclusion pay required by the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards? No. When an employee is excluded by their employer and entitled to exclusion pay (Exclusion Pay FAQS), an employer may not require the use of 2022 COVID-19 Supplemental Paid Sick Leave before providing exclusion pay. This is a change from the 2021 SPSL law, which did allow an employer to require an employee to exhaust SPSL before providing exclusion pay.
#37 Can an employer use state disability insurance (SDI) to meet its obligation to provide COVID-19 Supplemental Paid Sick Leave? No. Employers cannot require covered employees to use SDI before or in lieu of SPSL. A covered employee may apply for SDI after taking the SPLS to which the covered employee is entitled.
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.