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The New 2022 California Supplemental COVID-19 Paid Sick Leave: Answers to Employer Questions

The New 2022 California Supplemental COVID-19 Paid Sick Leave: Answers to Employer Questions

The New 2022 California Supplemental COVID-19 Paid Sick Leave: Answers to Employer Questions

California employers with 26 or more employees must now prepare to comply with a new supplemental COVID-19 paid sick leave law (“2022 COVID-SPSL”). Senate Bill 114, which was signed by Governor Newsom on February 9, 2022, requires employers to provide employees who qualify with up to 80 hours of supplemental paid sick leave. The new law takes effect on February 19, 2022 and is retroactive to January 1, 2022.

Employers need to take several actions to ensure compliance with the new law, including:

  • Adopting a new 2022 COVID-SPSL policy.
  • Creating an internal process for reviewing and approving 2022 COVID-SPSL leave requests.
  • Promptly addressing employee requests for retroactive payment and replenishment of regular paid sick leave accounts.
  • Creating a separate leave 2022 COVID-SPSL leave “bank” for employees.
  • Working with payroll providers to properly report all used 2022 COVID-SPSL hours on employee wage statements.
  • Posting a notice of the 2022 COVID-SPSL in a conspicuous place in the workplace.
  • Consulting employment counsel with any questions.

Speaking of questions, here are answers to several important employer questions regarding the new law:

QuestionAnswer
What are the effectives dates for the new law?The law takes effect February 19, 2022. It will expire on September 30, 2022.
Is the law retroactive?Yes, it is retroactive to January 1, 2022.
What employers must comply with the new law?Employers with 26 or more employees must comply with the new 2022 COVID-SPSL law.
What are the qualifying reasons for employees to receive 2022 COVID-SPSL?There are potentially two ways that employees who are unable to work or telework can qualify for 2022 COVID-SPSL. These are referred to as (1) COVID Related SPSL and (2) COVID Positive SPSL and are available to employees under the following circumstances:

1. 40 Hours For COVID-19 Related Reasons Such as Quarantines, Vaccines or School Closures (“COVID Related SPSL”).

a. The employee is subject to a state or locally mandated quarantine or isolation period (or caring for a qualifying family member that is subject to such period) related to COVID-19;
b. The employee has been advised to isolate or quarantine by a health care provider due to COVID-19 or the employee is caring for a family member that has been advised to isolate or quarantine by a health care provider;
c. The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster and/or is experiencing symptoms related to a COVID-19 vaccine or booster (Note: an employer may limit time off for this purpose to 3 days or 24 hours unless the employee provides a certification that they or their family member continues to experience COVID-19 symptoms);
d. The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis; and/or
e. The 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.

2. 40 Additional Hours for Employees Who Test Positive for COVID-19 or Are Caring for a Family Member Who Tested Positive for COVID-19 (“COVID Positive SPSL”).

An employee may receive up to an additional 40 hours if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. An employer has no obligation to provide paid leave for this purpose if the employee refuses to provide documentation of the positive test result (including the family member’s test result).
How much 2022 COVID-SPSL must be provided to full-time employees?Full-time employees may receive up to 40 hours of COVID Related SPSL and an additional 40 hours for COVID Positive SPSL as described above. The total maximum hours granted for any employee shall not exceed 80 hours.
How much 2022 COVID-SPSL must be provided to part-time employees?Part-time employees are entitled to a reduced amount of 2022 COVID-SPSL based on their scheduled hours of work. The total amount available to part-time employees will vary depending on whether the employee works a regular weekly schedule or a variable schedule, and may also vary depending on whether the employee has worked for the employer for more than six months.
How do employers calculate 2022 COVID-SPSL for non-exempt employees?For non-exempt employees, employers may use either of the following calculations:

1. The regular rate of pay for the workweek in which the employee uses 2022 COVID-SPSL; or
2. Divide the employee’s total wages, not including overtime (OT), by the employee’s total non-OT hours for the full pay periods in the preceding 90 days of employment. (Note: for employees paid piece rate, commissions, or by other methods that uses all hours to determine regular pay, the employee’s total wages (excluding OT) shall be divided by all hours worked.)
How do employers calculate 2022 COVID-SPSL for exempt employees?Employers should use the same method used in calculating wages as for other forms of paid leave time.
Is there a maximum amount of 2022 COVID-SPSL that employers are required to pay to employees?Employers are not required to pay more than $511 per day and $5,110 in total to an employee who qualifies for 2022 COVID-SPSL, unless federal legislation is enacted that increases these amounts.
If an employer already provided paid sick leave to an employee for one of the 2022 COVID-SPSL qualifying reasons since January 1, 2022, does that count towards the employee’s entitlement to paid sick leave under the new law?It depends. If an employer voluntarily provided paid sick leave to employees since January 1, 2022 for the COVID Related SPSL qualifying reasons described above, the amount of voluntarily provided paid sick leave will count toward the employees’ 2022 COVID-SPSL entitlement. If, however, the employer voluntarily provided paid sick leave to employees for the COVID Positive SPSL qualifying reasons described above, the amount of voluntarily provided paid sick leave will not count toward the employees’ 2022 COVID-SPSL entitlement. In summary, COVID Related SPSL that is voluntarily provided to employees will count retroactively, but COVID Positive SPSL will not.

It is important to note that an employer’s provision of required paid sick leave (e.g. California Labor Code, municipal ordinance or otherwise) since January 1, 2022 will not be counted against an employee’s entitlement to 2022 COVID-SPSL.

If a local government adopted a supplemental COVID-19 paid sick leave law since January 1, 2022 that affects your workforce, please contact us or your employment counsel to discuss.
Is an employer required to pay 2022 COVID-SPSL retroactively to employees that took time off for any of the qualifying reasons since January 1, 2022?Yes, if an employee makes and oral or written request for retroactive payment.
When must an employer issue a retroactive payment for 2022 COVID-SPSL?The employer must provide the retroactive payment on or before the next “full pay period” after the oral or written request was received.

It is important to note that the retroactive payment must be reflected on the wage statement for the corresponding pay period.
If employees used regular paid sick leave for time off work for a COVID Related PSL or COVID Positive PSL qualifying reason since January 1, 2022, are the employees entitled to have their paid sick leave bank replenished by the employer?Yes, if an employee makes an oral or written request and the employer provided the leave at an equal or greater amount as the employee is entitled to receive under 2022 COVID-SPSL.
When an employer is required to exclude an employee from the workplace because of a close contact or positive case pursuant to the Cal/OSHA Emergency Temporary Standards (“ETS”), may the employer require the employee to use 2022 COVID-SPSL during the exclusion period?No. An employer is still required to pay Exclusion Pay under the ETS to an employee separately from any 2022 COVID-SPSL to which the employee is entitled.
Can an employer require an employee to exhaust other paid leave first (e.g., vacation or regular sick leave) prior to using 2022 COVID-SPSL?No.
Does the new law impose any wage statement requirements?Yes. Employers must provide an employee with written notice that sets forth the amount of 2022 COVID-SPSL the employee has used through the pay period on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date. If the employee has not used any 2022 COVID-SPSL, the employer shall list “zero” as the hours used. The 2022 COVID-SPSL must be listed separately from regular paid sick leave on the wage statement.
When does the new wage statement requirement take effect?The wage statement requirement becomes effective the first full pay period after the new law’s effective date, i.e., February 19, 2022.

It is critical that California employers understand their new obligations under the state’s COVID-19 leave mandate and consult with their employment counsel to learn more. For additional information or questions about 2022 COVID-SPSL, please contact Stephenie Alexander, Wendy Tucker, Marie Burke Kenny, or any other member of our Labor and Employment team.


Wendy L. Tucker

Partner

Wendy focuses on providing effective and practical counseling and advice to employers in all areas of employment law including terminations, leaves and accommodations, harassment and discrimination, wage and hour, management training and investigations. Her clients include public entities, charter schools and all types of other businesses. Leader of Procopio’s Labor & Employment Law team, Wendy is experienced in successfully helping employers handle personnel crises and in resolving workforce issues such as toxic workplace or ineffective management and staffing. She advises her clients on solutions and best practices to minimize the risk of litigation or other exposure. Wendy is also experienced is assisting clients with all phases of union activity including recognition, collective bargaining, grievances and unfair practice charges and has represented clients before the Public Employment Relations Board.

Wendy focuses on providing effective and practical counseling and advice to employers in all areas of employment law including terminations, leaves and accommodations, harassment and discrimination, wage and hour, management training and investigations. Her clients include public entities, charter schools and all types of other businesses. Leader of Procopio’s Labor & Employment Law team, Wendy is experienced in successfully helping employers handle personnel crises and in resolving workforce issues such as toxic workplace or ineffective management and staffing. She advises her clients on solutions and best practices to minimize the risk of litigation or other exposure. Wendy is also experienced is assisting clients with all phases of union activity including recognition, collective bargaining, grievances and unfair practice charges and has represented clients before the Public Employment Relations Board.

Marie Burke Kenny

Partner

Marie represents employers in wage and hour class actions and litigation involving wrongful termination, discrimination, harassment, retaliation and unfair competition claims. She also has extensive experience counseling employers regarding all aspects of the employment relationship, including performance management, termination, contracts, workplace investigations, medical issues, leaves of absence, wage and hour audits, compensation review, workplace training and employment policies and practices. Marie works with employers to develop strategies to prevent employment claims and create effective defenses to litigation.

Marie represents employers in wage and hour class actions and litigation involving wrongful termination, discrimination, harassment, retaliation and unfair competition claims. She also has extensive experience counseling employers regarding all aspects of the employment relationship, including performance management, termination, contracts, workplace investigations, medical issues, leaves of absence, wage and hour audits, compensation review, workplace training and employment policies and practices. Marie works with employers to develop strategies to prevent employment claims and create effective defenses to litigation.

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