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  • Kevin Cleveland

COVID Supplemental Sick Time, Take 3?

As you likely recall, California enacted a state-wide COVID-19 supplemental paid sick leave (CA-SPSL) law on September 9, 2020, to supplement the federal Families First Coronavirus Response Act (“FFCRA”) (“2020 CA-SPSL”). After the 2020 CA-SPSL expired on December 31, 2020, a new 2021 CA-SPSL went into effect on March 19, 2021, that was retroactive to January 1, 2021, and ended on September 30, 2021.

Following Governor Newsom’s announcement, the proposed new law to create a third round of CA-SPSL for 2022 has been published. THIS HAS NOT YET PASSED, AND YOU DO NOT YET HAVE TO IMPLEMENT ANY CHANGES. However, we provide this information because this bill is likely to pass with few, if any, changes, and employers should start preparing for what is coming. Below are the main features of the new law. We will provide even greater detail once the law officially passes.

1. 2022 CA-SPSL only applies to businesses with 26 or more employees.

This also only applies if the employee is unable to work or telework.

2. There are two types of leave totaling 80 hours.

Employees can take up to 40 hours if the employee or a family member tests positive. Employees will have an additional 40 hours for the following covered reasons:

  • 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.

  • 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.

  • COVID-19 Symptoms and Diagnosis. 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.

  • Vaccination Appointment. The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster.

  • Vaccine Symptoms. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine, or booster, that prevent the employee from being able to work or telework.

  • School Closure Due to COVID 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.

Part-time employees receive a pro-rated amount of leave based on their regular schedule. Employees with variable schedules receive leave based on their average hours worked over up to a six-month lookback period (depending on length of employment).

3. Employers Can Require Some Documentation and Testing

Employees may only take up to 24 hours per vaccine/booster injection unless the employee provides verification from a health care provider that the person who received the injection is continuing to experience symptoms related to the vaccine or booster.

When employees take leave 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. If an employee refuses to provide documentation, the employer does not need to provide the leave.

If an employee tests positive, the employer may require the employee to submit to a diagnostic test on or after the fifth day and require proof of the results. Based on current return to work guidelines, depending on the employee’s vaccine situation, this may also allow the employee to return to work.

4. Retro payments to January 1, 2022, are required.

Like the 2021 SPSL law, employers will have 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.” As a result, employers should start reviewing the reasons that employees have taken leave and how much time the employees were out in order to be prepared to make payment upon demand.

5. Wage Statement Requirements

Employers now only need to list the amount of leave that has been used. If an employee has not yet used any leave, their statement must list “zero.” Employers do not need to list balances like what was required by previously versions of CA-SPSL.

6. Rate of Pay Aligns with Regular Paid Sick Leave

The rate of pay is the same as California’s regular paid sick leave and must be paid at the regular rate during the pay period taken, or with a 90-day lookback (or, for exempt employees, their typical pay). The $511/day cap remains.

7. Additional Notes:

  • Employers cannot require any other type of leave to be used instead of, or before, 2022 CA-SPSL. However, this does not remove the Cal/OSHA ETS requirement for exclusion pay where appropriate.

  • Employers that have provided COVID-19-related leave for reasons covered by the new law in amounts equal to or greater than what the law requires can take credit for previously provided leave since January 1, 2022.

  • Expect a new model poster to be published. This should be posted in the workplace and must be emailed to employees who do not frequent a workplace.

  • It is not currently clear whether businesses will have to fully absorb the cost of these new requirements or whether CA will develop a way for businesses to take tax credits or if a federal program will again be created which may allow CA employers to take tax credits for offering COVID related leave. We will let you know more when we know more.

We will follow up when this passes to provide information regarding any changes which are made and what specific deadlines employers will have to meet with regards to implementing these new requirements. For now, start preparing based on what is discussed above, and be ready to quickly implement the above as soon as we reach out. If you have any questions, please feel free to call, and the experts at the Employers’ Council will be happy to assist you.

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