On January 25, 2022, California Governor Newsom announced that key legislators had agreed on a framework to again require that employers provide COVID-19 supplemental paid sick leave. That announcement came to fruition this week when Governor Newsom signed Senate Bill 114, COVID-19 Supplemental Paid Sick Leave (“2022 SPSL”). This law takes effect immediately and is retroactive to January 1, 2022. For covered California employers, your obligation to comply with 2022 SPSL will begin on February 19, 2022 and sunset on September 30, 2022.
Those Covered under 2022 SPSL
Just as before, covered employers are those employers with more than 25 employees based in California. Covered employees includes all those who cannot telework. Family members include children, parents, spouses and registered domestic partners, grandparents, grandchildren, and siblings. Covered employees are entitled to payment upon request.
Two Banks of 2022 SPSL
The bill creates two banks of 2022 SPSL, one for when an employee or family member the employee cares for tests positive for COVID-19 and a second one for all other COVID-19-related reasons. Each bank of 2022 SPSL is up to 40 hours (depending on the employee’s work schedule). Note, the employee does not need to exhaust the leave in one bank before using leave in the other bank.
Bank #1: COVID-19 positive
A covered employee is entitled to 2022 SPSL if the covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.
If the employee asks for 2022 SPSL pay because the employee tested positive, the employer may require the employee to submit to a diagnostic test on or after the 5th day after the initial testing, and provide those test results. The testing must be made available at no cost to the employee. Conversely, the employer has no obligation to provide 2022 SPSL under this section for an employee who refuses to provide documentation of their test results upon request.
If the employee is caring for a qualifying family member who tests positive, the employer may require documentation of the family member’s test results before paying the leave.
Bank #2: All other COVID-19-related reasons
A covered employee is entitled to 2022 SPSL under this bank if:
- The covered employee is subject to a quarantine or isolation period related to COVID-19;
- The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19;
- The covered employee 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 limitations);
- 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;
- The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- The covered employee is caring for a family member who is subject to quarantine or isolation period related to COVID-19 or who has been advised to isolate or quarantine by a healthcare provider;
- The covered employee is caring for a child whose school or place of care is closed or unavailable for reasons related to COVID-19.
Intersection with Cal/OSHA Emergency Temporary Standards (ETS)
2022 SPSL makes clear that covered California employers cannot require covered employees to first exhaust their 2022 SPSL before providing paid leave for reasons related to COVID-19 under Cal/OSHA ETS, specifically an employer’s obligation to provide exclusion pay in the event of an outbreak. As of this article, the Cal/OSHA ETS FAQs reflect out-of-date information on 2021 SPSL. These FAQs are not binding and employers should rely on the FAQs only as an informational resource – not a statement of the law today. We can expect updated FAQs from the DLSE and Cal/OSHA shortly.
Reporting 2022 SPSL on the Wage Statement
Unlike its predecessors, 2022 SPSL requires that the wage statement reflect time the employee has used (rather than time available, as we saw before). Employers should list “zero” hours used if the covered employee has not used any 2022 SPSL. The law is not clear whether the wage statement needs to identify which “bank” of leave the employee has drawn on so we will continue to monitor for agency guidance on this.
Conclusion
This article is not exhaustive of 2022 SPSL’s requirements and is for general informational purposes only. The Labor Commissioner issued a model notice on 2022 SPSL for posting within the next week. Covered California employers can satisfy posting requirements by sending the notice by email where employees do not frequent a workplace. As a final reminder, certain employers are subject to local ordinances in addition to 2022 SPSL and should work with counsel on specific questions.
