The DIR has published the FAQs for the new 2022 Supplemental Paid Sick Leave, providing some much-needed clarity on how the law will operate. Below, we’ve included a few of the FAQs that are relevant to inquiries we’ve received and their answers.
14. Can an employer require documentation if an employee is requesting retroactive pay for the 2022 COVID-19 Supplemental Paid Sick Leave 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.
16. Do you have to exhaust the one week of COVID-19 paid sick leave that can be used for any qualifying reason before using the one week reserved for when an employee or qualifying family member tests positive for COVID-19?
No. The two weeks do not need to be consecutive, and exhaustion of one is not required before using another.
For example, a full-time covered employee can use 10 hours from the first bank to receive a COVID-19 vaccine booster shot and recover from symptoms, 40 hours from the second bank to care for a family member that tested positive for COVID-19, and then 30 hours from the first bank to care for a child whose daycare had closed due to COVID-19 on the premises
19. Can an employer require certification from a health care provider before allowing a covered employee to take the leave when the request is for a qualifying reason?
Generally, no. An employer may not deny a worker 2022 COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a health care provider. A covered employee is entitled to take 2022 COVID-19 Supplemental Paid Sick Leave immediately upon the covered employee’s oral or written request. The leave is not conditioned on medical certification. Although an employer cannot deny 2022 COVID-19 Supplemental Paid Sick Leave solely for lack of a medical certification, 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.
For example, if a covered employee informs an employer that the covered employee is subject to a local quarantine order or recommendation, has to stay home, and qualifies for 2022 COVID-19 Supplemental Paid Sick Leave, but the employer subsequently learns that the covered employee was out at a ballpark, the employer could reasonably request documentation.
20. Does the 2022 COVID-19 Supplemental Paid Sick Leave law address specific situations in which an employer may request documentation before paying the employee?
Yes, in several situations.
First, the 2022 COVID-19 Supplemental Paid Sick Leave law permits the employer to seek documentation before paying an employee if an employee is using the COVID-19 Supplemental Paid Sick Leave that is only available after a positive test. In such circumstances, 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. Second, 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.
Finally, when seeking retroactive pay, please see FAQ 14.
21. Is a particular type of COVID-19 diagnostic test required in order to qualify for leave based on having a positive test result?
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.
*NOTE: The test to return people to work is still subject to the current CDPH standards and Cal/OSHA’s ETS.*
22. Can the employer require an employee to get a COVID-19 test under the 2022 COVID-19 Supplemental Paid Sick Leave law?
Yes, in certain circumstances. The 2022 COVID-19 Supplemental Paid Sick Leave law provides that an employer may require a test after 5 days have passed since the employee tested positive for COVID-19 (emphasis added). 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.
29. If a covered employee used another type of leave, 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.
36. Can an employer require that an employee use 2022 COVID-19 Supplemental Paid Sick Leave when they have excluded an employee for workplace exposure to COVID-19 as 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 FAQ link), 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 subject to the COVID-19 Supplemental Paid Sick Leave law cannot require covered employees to use SDI before or in lieu of 2022 COVID-19 Supplemental Paid Sick Leave.
A covered employee may apply, however, for SDI after taking the 2022 COVID-19 Supplemental Paid Sick Leave to which the covered employee is entitled. The Employment Development Department (EDD) administers SDI, which provides benefits that are approximately 60‑70 percent of wages for eligible employees who are unable to work because they are sick or subject to an isolation or quarantine order or guidance. More information on SDI is posted on EDD’s website.
Of course, these FAQs do not sufficiently cover some of the more novel situations employers have encountered. We are engaging with the Labor Commissioner’s Office to attempt to get some more specific guidance.
If you have any questions about the new FAQs or the new SPSL in general, please do not hesitate to reach out to the experts at Young, Cohen & Durrett, LLP.
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