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2022 COVID-19 Supplemental COVID-19 Paid Sick Leave

September 30, 2022 64252

New! Effective September 30, 2022, COVID-19 supplemental paid sick leave (SPSL) has been extended through the end of 2022 and now provides relief to small businesses incurring the costs of such leave through California's Small Business and Nonprofit COVID-19 Relief Grant Program within the Governor’s Office of Business and Economic Development (GO-Biz). The extension under AB 152 does not provide an additional bank of time to those employees who may have already exhausted their allotted SPSL for the 2022 year. 

Senate Bill 114 (“SB 114”) requires that covered employers of 26 or more employees expand up to 80 hours of supplemental paid sick leave for employees’ with COVID-19-related absences who are unable to work or telework due to qualifying reasons.

Leave taken applies retroactively to eligible employees for covered reasons for qualifying leave taken on or after January 1, 2022 and remains in effect until December 31, 2022.

Covered employers must provide retroactive 2022 COVID-19 Supplemental Paid Sick Leave (2022 SPSL) beginning February 19 to employees who request to be paid for unpaid qualifying leave between January 1 and February 19.

Covered reasons for leave

The law applies to all employers that have 26 or more employees.

The 2022 SPSL law provides up to 80 hours of SPSL due to a qualifying COVID-19-related reason. It provides paid leave in two batches—one batch permitting up to 40 hours when an employee tests positive for COVID-19, and a second batch permitting “up to 40-hour” leave banks depending on circumstance and documentation.

The 2022 SPSL law allows employees to use leave to care for family members, defined to include a child, grandchild, grandparent, parent, sibling, domestic partner, or spouse.

Category #1 - COVID Qualifying Reasons

Up to 40-hours of leave (employees who are not employed full-time but scheduled to work regularly are entitled to the number of hours that an employee regularly works in one week) must be provided if the employee is unable to work or telework for any of the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
  • The employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
  • The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19. There are specific limits on the amount of SPSL that an employee may use for this purpose. Generally, an employer may limit the amount of time to 3 days or 24 hours absent a verification from a health provider.
  • The 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. Generally, an employer may limit the amount of time to 3 days or 24 hours absent a verification from a health provider.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for a family member who is subject to an order or guidance described above or who has been advised to isolate or quarantine, as described above.
  • 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.

Category #2 – Positive COVID-19

Leave hours from this 40-hour bank (employees who are not employed full-time but scheduled to work regularly are entitled to the number of hours that an employee regularly works in one week) will be available only if the employee tests positive (test on day five or later) for or is caring for a family member who tests positive for, COVID-19. The 2022 SPSL law specifically authorizes the employer to require proof of a positive COVID-19 test.

Amount of Leave Employees Receive and Can Use:

The total maximum amount of supplemental paid sick leave a covered employee is entitled to shall not exceed 80 hours for the period between January 1, 2022, and December 31, 2022.

The requirement to provide supplemental paid sick leave remains in effect through December 31, 2022. If the law expires while a covered employee is taking this leave, the employee can finish taking the amount of 2022 SPSL they are entitled to receive.

Category #1

Between January 1, 2022, and December 31, 2022, 40 hours of 2022 SPSL is available to an employee for covered COVID-related reasons as listed above.

Vaccine/Booster-related: Employers may limit hours spent for each COVID-19 vaccination or booster to a total of 3 days or 24 hours supplemental paid sick leave. If an employee needs more time, up to the full 40 hours may be given if the employee presents a doctor’s note stating the employee is still experiencing side effects related to a COVID-19 vaccine or vaccine booster.

The 3-day or 24-hour limitation applied to each vaccine or vaccine booster includes the time used attending an appointment for themselves or a family member to receive the COVID-19 vaccine or booster.

Category #2

An additional 40 hours of paid leave is available to employees who show proof that they (or their family member) have subsequently tested positive test on day five or later for the COVID-19 virus. An employer is permitted to require the covered employee, if that employee initially tests positive, to submit to another test on or after the fifth day after the first positive test and provide documentation of those results. An employer may deny an employee’s request for the additional time for failure to provide documentation of a test result.

Further, under AB 152, an employer in cases where the second test is positive, may require a third test within 24 hours. Employers may further be allowed to deny additional COVID-19 SPSL to an employee who refuses to submit to the tests. The employer must provide the additional tests at no cost to the employee. Additionally, employers are not required to provide new or additional SPSL to employees who have already used their 2022 COVID-19 sick pay allotment.

Category #2 Documentation Requirements

If the employee tested positive during the initial request for supplemental paid sick leave under Category #1, an employer is permitted to require the covered employee to submit to another test on or after the fifth day after the first positive test and provide documentation of those results.

The employer shall make such a test available at no cost to the employee.

An employer may require the covered employee to provide documentation of a family member’s subsequent test result before paying the additional 2022 SPSL. There is no requirement that this test be observed.

An employer may deny an employee’s request for the additional 40 hours of supplemental paid sick leave for failure to provide documentation of a test result.

Employee Eligibility and Coverage:

The maximum potential amount of 2022 SPSL an employee can receive is 80 hours for full-time employees. For part-time employees, the amount is proportionate to the number of hours they work. Below is information regarding how to calculate the amount of leave available to employees.

Regularly scheduled 40-hour workweek. Employees who are full-time or who worked or were scheduled to work at least 40 hours per week in the two weeks before leave is taken are entitled to take up to 40 hours of 2022 SPSL.

Normal Weekly Schedule. Full-time or part-time employees with a normal weekly schedule are entitled to take up to the total number of hours the employee would have worked for the employer for one week, not to exceed 40 hours for each leave bank.

Variable Schedule. Part-time employees on variable schedules are entitled to seven times the average number of hours worked each day in the six months preceding the date the employee takes 2022 SPSL, not to exceed 40 hours. If the employee has worked for the employer for less than six months, the total length of their employment is used, unless the employee has been employed for seven days or less. In that case, the total number of hours worked is used. This calculation is for each leave bank.

Calculating Pay for Supplemental COVID-19 Paid Sick Leave

The employer shall make all 2022 SPSL available for immediate use by the covered employee, upon the oral or written request of the covered employee to the employer.

Employers may not require employees to use any other paid leave benefit (e.g., paid sick leave, vacation, or PTO) before using 2022 SPSL.

The maximum amount that an employer is required to pay a covered employee is $511 per day, or $5,110 in the aggregate.

Nonexempt employees is calculated using one of the following:

  • In the same way the employer calculates the regular rate of pay for the workweek in which the employee uses SPSL, whether or not the employee actually works overtime during the workweek.
  • By dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment.
  • For nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, must be divided by all hours, to determine the correct amount SPSL.

Salary (exempt) employees should be compensated in the same manner as the employer calculates wages for other forms of paid leave time.

Retroactive Payment of Benefits

For retroactive payments related to leave taken between January 1 and February 19, employees must make a written or oral request to be paid retroactively for 2022 SPSL.

The employer shall make all 2022 SPSL available for immediate use by the covered employee, upon the oral or written request of the covered employee to the employer. After the employee makes the request, then the employer must pay the retroactive leave by the payday for the next full pay period.

Each hour of SPSL must be paid at the employee’s regular rate of pay for the workweek in which the leave is taken.

If an employer compensated an employee in an amount equal or greater to the allowable amount under the supplemental paid sick leave, the employee should be credited for any leave hours (such as use of available CA PSL or vacation time) used for COVID-specific leave purposes, and the employer should indicate those hours as 2022 SPSL.

Documentation

2022 SPSL hours used should be listed separately from regular paid sick days.

The amount of 2022 SPSL an employee has used through the pay period in which it was due to be paid must be reflected on the wage statement or in a separate writing provided on the designated pay date with the wage statement. If the employee has not used any SPSL, the wage statement or separate writing must reflect zero hours used.

Required Notice

By February 19, employers are required to display the “2022 COVID-19 Supplemental Paid Sick Leave” poster in a conspicuous place in the workplace. When employees do not frequent a physical workplace, to satisfy the requirement it may be disseminated to employees electronically.

How Does SB 114 Interact with Local SPSL Ordinances?

SB 114 provides that an employer may count leave provided under a local ordinance toward their obligation under SB 114 as long as the leave was provided for the same reasons and compensates the employee in an amount equal to or greater than the amount of compensation for COVID-19 SPSL under SB 114.

Interaction with Cal/OSHA Exclusion Pay Requirement

California employers are still obligated under the Cal/OSHA Emergency Temporary Standards to continue employees’ pay for certain COVID-19 workplace exposures.

Employers cannot require employees to exhaust supplemental paid sick leave before becoming eligible for exclusion pay under the Cal/OSHA ETS. Employees excluded from the workplace for a work-related exposure will need to be paid, and supplemental paid sick leave cannot be exhausted in order to meet the compensation requirement.

Credit for COVID-related time already paid

For employees who request retroactive SPSL, employers should credit the corresponding hours of CA PSL, vacation/PTO or other benefits used for COVID-specific leave purposes and the employer should be credited for providing those hours as COVID-19 supplemental paid sick leave.

Ensure the employees wage statement reflects these changes.

Small Business Relief

AB 152 established the California Small Business and Nonprofit COVID-19 Relief Grant Program within the Governor’s Office of Business and Economic Development (GO-Biz). The program provides grants of up to $50,000, but “no more than the actual costs incurred for” SPSL between January 1, 2022 and December 31, 2022,” to qualified small businesses and nonprofit organizations.

The grants are be available to businesses in the states that have provided COVID-19 SPSL under Section 248.6 and that are:

  • Incorporated as a “C” corporation, “S” corporation, cooperative, limited liability company, partnerships, or limited partnership or registered as a 501(c)(3), 501(c)(6), or 501(c)(19),
  • Began operation before June 1, 2021,
  • Are currently in operation, and
  • Have 26 to 49 employees.

The bill may also impose ownership restrictions and other exceptions to qualify for the grant relief program.

What Covered California Employers Should Do Now

  • Employers should monitor the California Labor Commissioner’s webpage FAQ's
  • Post, or send electronically, the required notice.
  • Assess policies, payroll practices, and records to ensure compliance.
  • Prepare standards and processes for calculating, processing, and timely paying requested SPSL
  • Prepare for the wage statement obligation by reporting “zero hours” until an employee uses SPSL
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