It’s time for another update on the current COVID-19 legislation and what impact the 2022 Supplemental Paid Sick Leave (“SPSL”) will have on California employers. California’s new SPSL officially took effect on February 19, 2022; however, it is retroactive to January 1, 2022. The SPSL provides for two separate 40-hour banks of leave: one for testing and isolating, and a second bank for employees or family members who test positive for COVID-19.

Below we have highlighted some of the more relevant sections that employers need to familiarize themselves with in order to avoid the potential for liability stemming from its handling of COVID-19 leaves of absence.

  1. How long will the SPSL govern employers’ obligations to its employees and their family members who are affected by COVID-19?

The SPSL is in effect from January 1, 2022 through September 30, 2022.

  • To which Employers does the SPSL apply?

All employers with 26 or more employees.

  • What are the scenarios in which an employee can request leave under the SPSL?

The 2022 SPSL provides for two separate banks of leave, both of which may total 40 hours.

First, SPSL is available to employees who cannot work (including working remotely) due to the any of the three following reasons: (a) Caring for themselves. This includes the employee who is subject to an isolation period or quarantine related to COVID-19, has been advised by a medical professional to isolate or quarantine, or who is experiencing COVID-19 symptoms. (b) Caring for a family member. An employee who is caring for a family member who is subject to an isolation period or quarantine related to COVID-19, has been advised by a medical professional to isolate or quarantine, or who is experiencing COVID-19 symptoms. (c) Vaccine or booster. An employee or a family member of an employee who has an appointment for a COVID-19 vaccine or booster, or experiences vaccine-related side effects.

Second, an employee or family member of an employee who tests positive for COVID-19.

  • When does an employer have to make the leave available to employees who request time off due to COVID-19?

Immediately upon written or oral request by the employee.

  • What notice must an employer provide to its employees?

Employers are required to display the 2022 COVID-19 SPSL poster at the workplace where employees can easily locate and read it. For example, employers should post the SPSL poster in the breakroom or other common areas where similar health and safety information is located.

If an employee works off-site or works remotely, then the employer must send the required information via email (or other electronic means such as an employee portal or dashboard).

  • Can the employee ask for retroactive pay SPSL if they took a leave prior to February 19, 2022?

Yes. If employees used sick leave prior to February 19, 2022, and did not receive compensation, they are entitled to pay, at their regular, straight-time wage. In order to qualify for the entire 80 hours of leave (40 hours in each of the two banks of leave), an employee must have worked an average of at least 40 hours per week in the two weeks prior to taking the leave.

If the employee receives retroactive pay for leave taken for a qualifying reason prior to February 19, 2022, then the employer can reduce the number of hours from that employee’s corresponding bank of hours.

  • What information must be contained in the employee’s paystub if they take leave pursuant to the 2022 COVID-19 SPSL?

If an employee takes leave under the SPSL, those hours must be itemized on the employee’s wage statement (paystub) for the pay period during which the leave was taken. This itemized line must be separate and distinct from other forms of leave available to the employee, including the 24 hours of “regular sick leave” and any accrued vacation. 

  • What type of COVID-19 test is required for an employee to qualify for leave under the SPSL?

Any COVID-19 test is acceptable, including an over-the-counter “at-home” (rapid test) or a test from a testing facility.

  • Can the employer require documentation from a medical professional when an employee requests to take leave for a qualifying reason?

Yes, in three situations.

First, if the employee is requesting retroactive pay from the period of January 1, 2022 through February 19, 2022.

Second, when an employee uses more than three days (or 24 hours) of leave for a single vaccination or booster appointment. A note from a medical professional stating that the side effects lasted longer than three days will suffice.

Third, when the employee seeks leave from the 40-hour bank designated for employees (or their family member(s)) who tested positive for COVID-19. If the employee fails to provide a positive test within a reasonable time, the employer can deny pay for the leave taken by the employee.

  1. Are there limits to how much SPSL an employee can use for receiving the vaccine or booster?

Yes, as described above, the maximum leave an employee can use for a vaccination or vaccine appointment is 24 hours. The employee does not have to use his or her 24 hours consecutively. For example, an employee could use four hours to receive a vaccine and then return to work if they are not suffering any died effects from the vaccination. The same employee could use the remaining 36 hours for subsequent vaccination or booster appointments, or if they suffer side effects from either of the latter appointments.

By: Christopher Correa, Esq.

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