California Institutes New Supplemental COVID-19 Paid Sick Leave Requirement (Updated)

February 22, 2022 Advisory

As we wrote last week, on Feb. 9, 2022, California enacted Labor Code section 248.6, which reinstitutes the state’s requirement that employers with more than 25 employees provide supplemental paid sick leave (SPSL) for COVID-19-related absences. While the statute is similar to last year’s COVID-19-related paid leave requirement, the new paid leave law allows leave under additional circumstances, divides the total amount of leaves available into two banks, and includes intricate rules regarding interaction with other available leave and benefits. (Special provisions applicable to firefighters, in-home supportive service employees and waiver personal care service providers are outside the scope of this alert.)

Update: The California Labor Commissioner has now issued FAQs to provide guidance on interpreting the SPSL, and published the required workplace poster (PDF download). Other updates to our prior alert are indicated below in italics.

Qualifying Reasons for SPSL

Covered employers must provide up to a total of 80 hours of paid leave to any employee, regardless of length of tenure, who is unable to work or telework for the following reasons: 

  • Up to 40 hours of leave are available if the employee is: (1) subject to a quarantine or isolation order; (2) advised by a health care provider to isolate or quarantine; (3) attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster; (4) experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster; (5) experiencing symptoms of COVID-19 and seeking a medical diagnosis; (6) caring for a family member who is subject to a quarantine or isolation order or has been advised by a health care provider to isolate or quarantine; or (7) caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  • Up to 40 hours of leave are separately available if the employee tests positive, or is caring for a family member who tests positive, for COVID-19.

“Family member” includes the employee’s child, parent, spouse, registered domestic partner, grandparent, grandchild and sibling. 

Interaction with Other Leave

Employers may not require an employee to take any other form of paid or unpaid leave, paid time off or vacation time provided by the employer prior to or in lieu of providing the SPSL available under Labor Code 248.6. However, an employer may count the hours of supplemental paid leave providing benefits at least as generous as those set forth in Labor Code 248.6, and for the same reasons set forth in the statute (such as paid leave provided pursuant to federal law or local ordinances), provided on or after Jan. 1, 2022, toward total SPSL benefits.

Of note, this new version of the SPSL interacts differently with Cal-OSHA requirements than did the 2021 law: Now employers cannot require exhaustion of SPSL before providing the exclusion pay that may be required under Cal-OSHA’s COVID-19 Emergency Temporary Standards (ETS) or Aerosol Transmissible Diseases Standard (ATDS) for exclusion based on workplace COVID-19 exposure.

Amount of Leave

Another difference in the 2022 law is in the amount of leave available: the maximum of 80 hours of leave for full-time employees (or a proportionate amount for part-time employees) is divided into two leave banks of up to 40 hours each, with one bank available only if the employee tests positive for COVID-19 or is caring for a family member who does, and a second bank available only for the other covered reasons. Also, for each vaccination or vaccine booster, an employer may limit the total leave to three days or 24 hours unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to the vaccine or booster. Update: The Labor Commissioner has clarified that the time off under the SPSL need not be consecutive, and exhaustion of one bank of leave is not required before using the other (FAQ 16).

Employers that have provided leave for COVID-19-related reasons to an employee in the past may be entitled to an offset, depending on the nature of the prior time off. For example, paid leave that was granted after Jan. 1, 2022, under a policy (including one required by local ordinance) that provides leave for the reasons available under the 2022 SPSL and grants the same or greater benefits may be used to offset the SPSL obligation; however, time off under California's Healthy Workplaces, Healthy Families Act (HWHFA), the pre-COVID paid sick and safe time law, or 2021 CPSL may not offset any 2022 SPSL obligation. In addition, employees may request to substitute 2022 CPSL after the fact, if they previously took leave under a different type of paid time off for an SPSL qualifying reason. Update: For more information on offsets and interaction of other laws, see FAQs 25-29 and 35-37.

Calculating Leave

Leave amounts are calculated based on an employee’s full-time status:

  • Full-Time Employees: Employees who are considered “full time” by their employer, or who worked or were scheduled to work an average of at least 40 hours per week in the two weeks preceding the date they took leave, can take up to 40 hours from each bank of leave.
  • Non-Full-Time Employees:
    • If the employee has a regular weekly schedule, they can take leave for up to the number of hours they are normally scheduled for one week.
    • If the employee works a variable schedule, then the calculation depends on their length of tenure with the employer: (1) those employed for at least eight days may take up to seven times the average number of hours they worked each day over the six months preceding their leave date (or over their entire tenure, if less than six months); and (2) those who have worked seven or fewer days may take leave equal to their total number of hours worked (in all cases up to 40 hours per leave bank).

The statute does not address how to calculate leave when the reasons for leave are mixed, such as when an individual tests positive for COVID-19 after first being absent due to experiencing symptoms, or must quarantine after testing positive. Update: The FAQs published by the Labor Commissioner as of Feb. 18, 2022 do not clarify this issue.

Calculating Pay During Leave

Employees are entitled to pay for SPSL time off based on their exempt/nonexempt status:

  • Exempt Employees: Must be paid in the same manner as when taking other forms of paid leave.
  • Nonexempt Employees: Must be paid based on one of the following calculations:
    • the employee’s regular rate of pay for the workweek in which the employee uses SPSL;
    • the rate obtained by dividing the employee’s total wages, not including overtime premium pay, by the total hours worked not including overtime hours (except for employees paid on a piece rate, commission or other basis when all hours are used to determine the regular rate), in the full pay periods of the prior 90 days of employment; or
    • at no less than the state or local minimum wage, whichever applies.

Employers’ SPSL payments are capped at $511 per day and $5,110 in the aggregate (or any higher amount that may be enacted in the future for the now-expired federal Emergency Paid Sick Leave under the federal Families First Coronavirus Response Act). However, employees may choose to supplement their pay by using other available paid leave.

Documentation

Employers generally may not require documentation of the need for SPSL leave. However, employers may require proof of a positive test result when the employee seeks to use SPSL for their own illness, and may also require the employee to take another diagnostic test on or after the fifth day after the first test and provide documentation of the results, so long as the test is made available by the employer at no cost to the employee. Employers may also require proof that an employee needs more than three days or 24 hours to deal with the effects of a vaccine or booster. In addition, if an employee requests to use leave to care for a family member who tests positive for COVID-19, the employer may require the employee to provide documentation of that family member’s test results before paying the leave (though the text of the statute suggests that unpaid leave must be granted regardless). Update: According to the Labor Commissioner, while a covered worker’s oral or written request for SPSL may not be denied based solely on a lack of certification from a health care provider, if an employer has information indicating that the request is not being made for a valid purpose, it may be reasonable for the employer to request supporting documentation before paying the sick leave (FAQ 19). Employers are advised to consult with counsel if such circumstances may exist before taking action.

Timeframe for Compliance

The statute applies retroactively from Jan. 1, 2022, through Sept. 30, 2022. Employers are required to begin providing leave consistent with Labor Code section 248.6, including retroactive payments that may be requested by an employee for previously unpaid or underpaid time off, no later than Feb. 19, 2022. Update: According to the Labor Commissioner, employees may make requests for retroactive pay orally or in writing, beginning no sooner than Feb. 19, 2022, relating to time off taken for qualifying reasons between Jan. 1, 2022 and Feb. 19, 2022, and the employer then has until the payday for the next full pay period to provide the retroactive pay and an accounting of SPSL time used (FAQ 13).

Notice, Posting and Paystub Requirements

Updated: The California Department of Industrial Relations has published a poster to address the requirements of California’s 2022 supplemental paid leave law. Employers must display the poster where employees can easily read it. If employees do not frequent a physical workplace, the employer may disseminate the poster to employees electronically. Further, employers must report the 2022 SPSL hours an employee has used on that employee’s paystub or in a separate writing provided on the pay date, with zero hours listed for employees who have not used any SPSL time off.

If you have any questions specific to your organization, please contact your regular Armstrong Teasdale attorney or one of the authors listed below.

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