On January 25, 2022, Governor Newsom’s office published a press release announcing the return of Supplemental Paid Sick Leave (see our HR Headliner here). That legislation was passed by the state Senate on February 7, and was signed by Governor Newsom today, February 9.
The law will go into effect in ten days, on February 19, 2022, and benefit payments will be retroactive back to January 1 of this year.
Covered Employers and Covered Employees
As predicted, SPSL applies only to employers that employ more than 25 employees. Smaller employers are not required to provide SPSL.
All employees of a covered employer are eligible for SPSL as long as they are unable to work (or telework) for reasons related to COVID-19. There are no length-of-service requirements
Qualifying Reasons for Benefits
These qualifying reasons are familiar. An employee is entitled to SPSL if they cannot work because:
1. They are subject to quarantine or isolation order/guidance.
2. They were advised by a health care provider to quarantine or isolate.
3. They or a family member are receiving a vaccine or vaccine booster.
4. They or a family member are experiencing symptoms due to receiving a vaccine or vaccine booster.
5. They are experiencing COVID-19 symptoms and are seeking a medical diagnosis.
6. They are caring for a family member subject to a quarantine or isolation order or recommendation.
7. They are caring for a child whose school or care provider is unavailable.
Conditions and Calculations
Historically, SPSL was an 80-hour benefit with few restrictions. This new SPSL benefit works much differently. Employees are initially eligible for only half of this new benefit – 40 hours for full-time employees – for the reasons listed above. They can qualify for an additional 40 hours only if they or a family member test positive for COVID-19.
Employers can require proof of this positive COVID-19 test. If, for some reason, an employer questions the validity of the documentation provided, the employee can be required to take a diagnostic test (at the employer’s expense) five days after the first test was taken. The employer has no obligation to provide additional SPSL to an employee who refuses to provide documentation of the test results.
Additionally, employers can limit SPSL taken for vaccine/booster appointments and symptoms to 3 days (24 hours) unless the employee provides verification from a health care provider that they need more time.
This supplemental paid sick leave benefit must be in addition to sick leave the employer already provides. That said, if an employer proactively provided a supplemental benefit for employee absences related to COVID-19, they can count that against their obligation to provide SPSL. (This does not apply to an employee’s use of state-mandated paid sick leave.)
An employee cannot be required to use any other paid or unpaid leave, including sick leave and vacation, before he/she is eligible to use SPSL for a qualifying purpose. If the employee must be excluded from work under Cal/OSHA regulations for workplace exposure, the employer must provide exclusion pay as described in the Cal/OSHA ETS, which will not impact the amount of SPSL the employee has available.
SPSL must be paid at the employee’s regular rate of pay for the workweek in which the employee uses the sick time.
Unfortunately, there are no tax credits or refunds attached to SPSL. Employers will need to foot the bill out of their own pockets.
Calculations for Part-Time and Variable Schedules
Full-time employees are eligible for 40 hours of SPSL, with the potential for 40 more hours with a positive COVID test. Part-time employees with regular schedules are entitled to the number of hours they would normally work in one week.
If a part-time employee works a variable schedule, the new SPSL law requires employers to find the employee’s daily average over the last six months (or, for newer employees, the length of their employment) and multiply that times 7 to determine that employee’s SPSL entitlement.
SPSL is to be provided “upon the oral or written request” of the employee. This includes retroactive payment for absences earlier in the year.
Once a request has been made, payment is due by the payday for the next full pay period.
The law requires the Labor Commissioner, within the next week, to make a model notice available to employers. Employers must post this notice and provide it to employees who do not visit the workplace. Employers must also provide each employee with written notice of the amount of SPSL he/she has used, either itemized on the check stub or in a separate writing provided on pay day. The notice should list zero hours used if the employee has not used any SPSL under this law.