Employment Law Bulletin | January 11, 2023

In this month’s Employment Law Bulletin we bring to you our 2023 Employment Law Update Action Items from the Employment Law Update seminar held via Zoom earlier today.  Employers can use this handy list to help ensure their organization is in compliance with new laws that took effect in January 2023.  Please reach out to an SMT employment attorney if you have questions.  We are here to help.

2023 Employment Law Update Action Items

2023 CA Labor Law Poster

  • Purchase, fill in and post

2023 CA Minimum Wage Increase

  • Review hourly pay rates and raise if necessary
  • Review exempt EE salaries and raise if necessary
  • Review commissioned EE compensation to determine if they still meet the threshold
  • Analyze any formula based on new MW

2023 City Minimum Wage Ordinances

  • If you have EEs who work any hours in cities with MW ordinances, check to see if the EEs fit the ordinance definition of EE; if so, the MW ordinance applies to them
  • Review hourly pay rates and raise if necessary
  • Notify EEs on new local MW
  • Print and post the required local city ordinance MW posters

Overtime for Agricultural Workers Act of 2016

  • ERs with > 25 EEs:  verify you are applying the 8/day, 40/week OT standard, and 12/day DT standard
  • ERs with 1-25 EEs: implement new 9/day, 50/week OT standard now and plan for future changes

Timekeeping (Non-exempt EEs Only) – Camp v. Home Depot U.S.A., Inc.

  • Review timekeeping systems and practices to identify if any rounding policies are used
  • Consult with SMT to discuss eliminating rounding rules without raising a red flag for EEs

Rest/Meal Premiums are Wages (Non-exempt EEs only)

  • Itemize break premium pay separately on pay stubs:
    • Identify as meal break or rest break premium
    • Number of hours of premiums being paid
    • Premium rate of pay (must be paid at RROP)
  • Check in with your payroll company to ensure pay stub compliance
  • Ensure that all premium pay is paid with final pay at separation from employment

Pay Data Reporting (SB 1162)

Pay Scale Disclosures (SB 1162)

  • Develop pay scales for all positions
  • Train HR/supervisors/hiring personnel regarding disclosure obligations to current EEs and applicants
  • Review and update all job postings to include pay scales
  • Ensure 3rd parties include the pay scales you provide in the job posting
  • Create and maintain job title and wage rate history for all EEs

2023 IRS Mileage Rate

  • Ensure EEs using personal vehicles for business are being properly reimbursed for business mileage
  • Inform your payroll/finance department of the mileage rate change so EEs are properly reimbursed

I-9 Form

  • Check the U.S. Citizenship and Immigration Services website monthly for the updated version www.uscis.gov/i-9

DFEH Gets a New Name

  • Make sure Employee Handbooks and forms accurately reflect the new name

Protection for Reproductive Health Decisionmaking

  • Review Employee Handbooks, policies, and training materials to ensure the new protected class is addressed

2023 Sexual Harassment Fact Sheet

  • Use CRD fact sheet or develop own version and distribute to all EEs
  • Implement training for EEs and supervisors

Extending Sexual Assault Statute of Limitations

  • Cross fingers and hope that if a claim wasn’t already filed, it won’t be

Prohibition Against Adverse Actions During Emergency Conditions

  • Train supervisors on requirements of new law
  • Review policies for compliance
  • If you think you might be exempt, check the bill or contact us

Bereavement Leave

  • ERs who already provide bereavement leave should review their leave policy to ensure it provides for a minimum of 5 days of leave and that the policy does not contain a requirement that the days off be taken consecutively; allow leave to be taken over 3 months
  • ERs who do not already provide bereavement leave should revise their Employee Handbooks and policies to add a bereavement leave policy

CA Family Right Acts & Paid Sick Leave: Designated Person

  • Revise PSL and CFRA policies
  • Ensure management and HR staff are trained on the eligibility requirements and differences in what it means to be a Designated Person for CFRA and PSL
  • Revise time off requests and leave of absence forms to provide a mechanism for EEs to identify a Designated Person

Paid Family Leave (PFL) Small Business Grant Money  

  • Applications will be accepted through 5/31/24 or until the funding is exhausted so it’s important to get your application in as soon as you have an EE using PFL benefits

Arbitration Agreements – Viking River Cruises, Inc. v. Moriana

  • If you have an arbitration agreement, consult with SMT about revisions under Viking River
  • If you don’t have an arbitration agreement, consult with SMT about the pros and cons to determine if one is right for your business

Employee Privacy Rights

  • Determine if your business is covered by the law.  If so:
    • Determine the type of information you collect and where and how long it is kept
    • Develop the required notice
    • Adopt security measures for protecting personal information
    • Identify the person who will be responsible for responding to requests
    • Develop procedures for responding to requests
    • Train personnel

Responsible Beverage Service Training for Alcohol Servers

  • Ensure all current EEs have completed the required training
  • Ensure all new EEs complete the required training w/in 60 days of employment

Off-Duty Cannabis Use (AB 2188) (by 1/1/2024)

  • Update drug and alcohol testing policies and procedures
  • Implement fitness for duty policy
  • Train managers/supervisors

Cal-Savers (SB 1126)

  • If you do not offer a retirement plan and you have 5 or more EEs
    • Register with CalSavers
    • Issue required notices to EEs
    • Facilitate EE deductions
  • If you do not offer a retirement plan and you have 1-4 EEs prepare for compliance as of 1/1/2025

COVID-19 Notification Requirements 

  • Draft a posting document now in order to comply with the one day turnaround or continue to issue written notices

CAL/OSHA Non-Emergency Prevention Standard

  • Ensure training and compliance with new standard

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | December 20, 2022

CAL/OSHA Closes In On Finalizing COVID-19 Non-Emergency Prevention Regulations

On December 15, 2022 the California OSHA Board voted to adopt the Non-Emergency COVID-19 Prevention regulations (previously known as the Emergency Temporary Standards or ETS).  The Prevention regulations will take effect once they are approved by the Office of Administrative Law (OAL), which we expect will occur in January 2023 (the exact date is unknown at this time).  Once approved, they will remain in effect for two years, except for the recordkeeping obligations, which remain in effect for three years.

The Prevention regulations mirror the old ETS in many ways, but there are some significant changes to the employer obligations that are important to know.  A fact sheet outlining the requirements of the Prevention regulations has been posted on the Department of Industrial Relations website and can be found here.  The Department is also working on a list of Frequently Asked Questions to assist employers in understanding their obligations under the Prevention regulations.  One item of note is that the Prevention regulations no longer include a requirement for employers to pay employees who are excluded from work because of work-related COVID-19 reasons.  However, it appears this may change in January after the Board reviews a proposal that is currently being drafted in support of the requirement.

We are closely following the developments of the Prevention regulations in order to provide our clients with the most up-to-date advice.  Once they are final, we will also update our COVID-19 protocol and notification packet.  If you have questions about the Prevention regulations, reach out to an SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | November 3, 2022

Leave to Grieve Required in 2023

Beginning January 1, 2023, businesses with five or more employees will be required to provide up to five days of unpaid bereavement leave when an employee suffers a loss of a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  Eligible employees must have worked 30 days prior to the request to qualify for the leave.  The leave can be taken all at once or over time but, if the employee chooses to split up the days off, the leave must conclude within three months of the family member’s death.  The new law does not limit the employee to taking only five days of bereavement leave per year, but rather allows for five days of leave per eligible family member’s death.  Although the leave is unpaid, employees must be allowed to use any accrued and available vacation, personal leave, sick leave, or other available compensatory time on the books.

The new law prohibits employers from retaliating against an employee who requests or takes bereavement leave and prohibits discrimination or interference with the right to take bereavement leave.  On that note, although the law allows employers to ask for documentation supporting an employee’s request for leave, employers may want to consult counsel before asking for it to avoid discrimination, retaliation or interference with leave claims.

Employers who already provide bereavement leave, including those with collective bargaining agreements, should review their leave policy to ensure it provides for a minimum of five days of leave and that the policy does not contain a requirement that the days off be taken consecutively.

If you have questions or need help preparing or revising your bereavement leave policy, reach out to an SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | October 3, 2022

Governor Newsom Extends COVID Supplemental Paid Sick Leave (Again) For Employers with More than 25 Employees

The California COVID-19 Supplemental Paid Sick Leave (SPSL) law, originally set to expire on September 30, 2022, has been extended through December 31, 2022.  While the law still only applies to employers with more than 25 employees and does not add any additional SPSL entitlement, it gives employees three more months to use the benefits conferred by the law in early 2022 if they are unable to work (on site or remotely) for specific reasons related to COVID-19.  For a complete discussion of the SPSL hours entitlement and conditions for use, see our February 10, 2022 Employment Law Bulletin.

The new law has two new features.  First, it allows employers to require a COVID-positive employee who tested positive five days after their initial positive test to submit to a second diagnostic test within no less than 24 hours, so long as the employer provides both tests at no cost to the employee.  If the employee refuses to test a second time, the employer may stop paying SPSL benefits.

Second, the law establishes a grant program to assist “qualified small businesses or nonprofits” that are incurring SPSL costs.  Grant recipients may exclude grant allocations from their gross income for state income tax purposes for tax years beginning 2021 through calendar year 2029.  “Qualified small businesses and nonprofits” generally include corporations, limited liability companies, partnerships, limited partnerships and registered nonprofits that provided SPSL during calendar year 2022, so long as they began operating before June 1, 2021 and have 26 to 49 employees.  Grants are not available to sole proprietorships or employers with more than 49 employees.

Please contact an SMT employment law attorney if you have questions about your SPSL obligations or if you need assistance with any other employment law needs.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | September 22, 2022

New Law Protects Employees’ Off Duty Marijuana Use

Effective January 1, 2024 (yes 2024), it will be unlawful for California employers to discriminate against an employee in hiring, termination, and other terms and conditions of employment based on (1) the employee’s off-the-job use of cannabis; and (2) drug test results that measure the nonpsychoactive cannabis metabolites in hair, blood, urine or other bodily fluids.

The new law’s protections address the limitations of traditional drug tests that don’t distinguish between unmetabolized tetrahydrocannabinol (THC) levels that can indicate impairment and cause psychoactive effects, from metabolized THC that is stored in the body as a nonpsychoactive cannabis metabolite long after cannabis use.  Currently, most cannabis tests show only the presence of the nonpsychoactive cannabis metabolite.

The law permits employers to act upon positive THC drug tests only if their actions are based on a scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.  We expect to see advancements in such tests over the next year, which may be why the law is not effective until January 2024.

Even after the law becomes effective, employers may still discipline employees for possessing, being impaired by, or using cannabis on the job, however, such use cannot be proven by a drug screening that screens for nonpsychoactive cannabis metabolites.

The new law does not apply to:

  • employees in the building and construction trades;
  • applicants and employees in positions requiring a federal background investigation or clearance; or
  • applicants or employees who are required by state or federal law to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

While the law does not become effective until January 1, 2024, it’s never too early to contact an SMT employment law attorney to discuss updating your workplace drug and alcohol policies and testing requirements.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | August 3, 2022

Minimum Wage Increase Effective January 1, 2023 for ALL Employers

On July 27, 2022, the California Department of Finance issued a letter certifying a 3.5% increase to the state’s minimum wage bringing it to $15.50/hour, effective January 1, 2023.  Unlike in prior years, there will not be a lower minimum wage rate for small employers with 25 or fewer employees.  Instead, the minimum wage will be the same for all employers regardless of size.  This means a $1.50 increase for small employers who had expected a jump from the current rate of $14/hour to $15/hour in 2023, and an unexpected .50 cent increase for large employers (26 or more employees).

In addition, because the exempt salary threshold is tied to the minimum wage rate, it will also be increasing.  For 2023, employers, regardless of size, will be required to pay a minimum salary of $64,480 in order to continue to classify an employee as exempt.  For small employers, this means a significant increase in pay for those currently paying their exempt employees the minimum salary of $58,240.  Large employers paying the minimum salary will also have to implement an increase from the current threshold of $62,400.

It is important to remember that employers must meet both the salary and duties requirements in order to classify an employee as exempt.  Failing to pay the minimum salary can destroy the exemption and lead to misclassification claims even if the employee spends 50% or more of their time performing exempt tasks.  Misclassification claims often involve serious exposure for unpaid overtime and meal and rest break penalties, making audits of your exempt employees’ salaries and job duties a priority for your business.

According to the Department of Finance, the rate increase is intended to help curb the impact of inflation.  Even so, many employers will see the rate increase as a significant challenge.  If you have questions about the rate increase or the consequences of misclassifying an employee as exempt, please reach out to a SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | June 30, 2022

IRS Increases Standard Mileage Rate for Business Travel

Effective July 1, 2022, the standard mileage rate for operating an automobile for business travel will be 62.5 cents per mile, up 4 cents from the rate effective at the start of the year.  This rate will be in effect for the final six months of 2022.  Employers use the standard mileage rate as a safe harbor rate to reimburse employees who drive their personal cars for business purposes for their employers.

City of San Francisco and Other City Minimum Wage Increases on July 1, 2022

On July 1, 2022, San Francisco’s minimum wage increases to $16.99, up from $16.32.  The San Francisco Minimum Wage Ordinance applies to all employees who work at least two hours during any given week in the City of San Francisco, regardless of their employer’s location.  More information can be found at www.sfgov.org.

Other cities with July 1, 2022 minimum wage increases include Emeryville ($17.68), the City of Los Angeles ($16.04), the County of Los Angeles ($15.96) and Pasadena ($16.11).

Responsible Beverage Service Training Required for Alcohol Servers by August 31, 2022

Beginning July 1, 2022, ABC licensees with an ABC On-Premises License will be required to ensure alcohol servers and managers of alcohol servers receive training from an ABC-approved Responsible Beverage Service Provider within 60 days from the first date of employment.  The training requirement applies to employees hired before and after July 1, 2022, and must be completed by August 31, 2022.  The requirement includes completing a training program and passing an exam.  The law is designed to teach alcohol servers to responsibly serve alcoholic beverages and mitigate alcohol-related harm in California.  More information can be found at www.abc.ca.gov.

Please contact an SMT employment lawyer if you have questions about these new laws or if you need assistance with any employment law issues.  We are here to help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | May 12, 2022

CAL/OSHA Revises and Adopts Emergency Temporary Standards for a Third Time

On May 6, 2022, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards for the third time (“Revised ETS”).  The Revised ETS will be in effect until December 31, 2022, subject to change only if California Department of Public Health (“CDPH”) guidance changes.  The Revised ETS can be found here.  Cal/OSHA’s FAQs on the Revised ETS can be found here (general FAQs) and here (FAQs specific to the changes).  Terms capitalized in this article are defined in the Revised ETS.

The latest changes reflect the agency’s desire to attain flexibility and consistency with the CDPH.  In an apparent attempt to recognize that the recent COVID-19 variant attacks both vaccinated and unvaccinated individuals, the Revised ETS removes all distinctions based on vaccination status, making the ETS applicable to all employees.  Below is a summary of the major changes that affect employers.

Revised Testing Requirements

Regardless of the employee’s vaccination status, employers must offer testing at no cost and during paid work time to all symptomatic employees and employees with a workplace Close Contact.  However, employers are not required to offer testing to employees who have recently recovered (within 90 days) from COVID-19.

The Revised ETS also now permits the use of self-administered and self-read tests, so long as the employee provides independent verification of the results, such as a time-stamped photograph of the results.

Revised Face Covering Requirements

Face coverings are no longer mandatory indoors for unvaccinated employees.  However, all employees are required to wear masks under the following circumstances:

  • If the CDPH issues an order requiring them.  Currently, face coverings are required in the workplaces listed below.  Review CDPH guidance here, as these are subject to change.
    • Emergency shelters
    • Cooling and heating centers
    • Healthcare settings
    • Correctional facilities and detention centers
    • Homeless shelters
    • Long term care settings and adult and senior care facilities
  • When the employee has tested positive for COVID-19 and returns to work within ten days of experiencing symptoms or receiving a positive test result; or
  • When the employee is part of an Exposed Group during a workplace Outbreak or Major Outbreak.

If an employee requests an N-95 respirator, employers must provide it to the employee free of charge regardless of vaccination status (previously only required for unvaccinated employees).

Revised Physical Distancing Requirements

All physical distancing requirements have been removed unless there is an Outbreak, a Major Outbreak, or an ongoing requirement to assess and prevent the transmission of disease.

Partitions and barriers are no longer necessary to reduce COVID-19 transmission.

Revised Exclusion Requirements

The exclusion of employees from the workplace is now required pursuant to CDPH guidelines. Click here for the current CDPH guidelines to ensure compliance.

Employer-Provided Transportation and Housing Requirements

Employee vaccination status is no longer a differentiating factor in determining what requirements apply for employer-provided housing and transportation; rather, the requirements apply to all employees.

Cleaning and Disinfection Requirements Removed

Cleaning and disinfecting requirements are no longer necessary under the Revised ETS.

Requirements from the Previous ETS That Have Not Changed

The following requirements remain the same under the Revised ETS:

  • Establishing, implementing, and maintaining an effective written COVID-19 Prevention Program.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of Outbreaks.
  • Providing notification to employees of potential exposure and Close Contacts.
  • Offering COVID-19 testing after potential exposures.
  • Requirements for responding to COVID-19 cases and Outbreaks.
  • Isolation and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

Conclusion

Failure to implement and enforce the Revised ETS in your workplace exposes your business to Cal/OSHA fines, workers’ compensation liability for workplace COVID-19 cases, and employee claims.  If you would like assistance in understanding the Revised ETS, investigating workplace exposures, or developing the required notices to employees, please contact an SMT Employment Attorney.  We are here to help you.

If SMT previously created an ETS-compliant Protocol, Workplace Investigation, and Notice packet for your business, please reach out to us so we can prepare an updated packet that complies with the Revised ETS requirements.  If you haven’t yet received a packet and would like to have one prepared so you will be ready to quickly investigate and notify your employees of a COVID-19 exposure in the workplace, please contact an SMT Employment Attorney.

Kari Brown
Betsey Cunningham

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 3, 2022

New Orders Loosen Mask Requirements for the General Public and Employees In Most Workplaces

Effective March 1, 2022, the California Department of Public Health’s (CDPH) face covering requirements for the general public and most workplaces have been downgraded from mandatory to a “strong recommendation” regardless of vaccination status.  Sonoma County is following the state guidance and has dropped its more restrictive order.

Universal masking is still required in the following specified high-risk settings:

  • Indoors in K-12 schools, childcare (through March 11, 2022)
  • On public transit
  • Emergency shelters and cooling and heating centers
  • Healthcare settings
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Other workplace scenarios where mandatory face coverings are required regardless of vaccination status include:

  • employers with onsite indoor health screenings:  screeners and the employees being screened must wear face coverings
  • if there is an “outbreak” or “major outbreak” (as defined by Title 8 California Code of Regulations sections 3205.1 and 3205.2) employees in the exposed group must wear face coverings when indoors
  • employees who have had a COVID-19 exposure and are exempt from quarantine or are ending their quarantine after Day 5 per the Cal-OSHA COVID-19 Isolation and Quarantine Guidelines
  • employees who have tested positive for COVID-19 and are returning to work after day 5 per the Cal-OSHA COVID-19 Isolation and Quarantine Guidelines.

While masking is no longer mandatory in most workplaces, employers may impose their own face covering requirements.  Employees must also be permitted to wear face coverings if they wish to do so.

The Cal-OSHA COVID-19 Isolation and Quarantine guidelines published on January 14, 2022 remain in effect for employees who test positive for COVID-19 or were exposed to someone with COVID-19.

While the CDPH, Cal-OSHA and Sonoma County are now in line with regard to face covering requirements, some California cities and counties continue to have their own requirements.  Be sure to check your local jurisdiction or contact an SMT employment attorney if you need assistance.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | February 10, 2022

State of California Revives COVID-19 Supplemental Paid Sick Leave (Again)
Take Action Now!

Yesterday afternoon, Governor Newsom approved SB 114, reviving COVID-19 Supplemental Paid Sick Leave (SPSL) through September 30, 2022.  Employers with more than 25 employees are expected to comply with the new requirements starting February 19, 2022, so it is critical to act now.

Eligible Employees:  An employee is eligible for SPSL if the employee makes an oral or written request for time off and is unable to work or telework for one of the reasons listed below.  The employee:

  • is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer with jurisdiction over the workplace;
  • has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • is attending an appointment for themselves or a family member to receive a vaccine or booster for protection against contracting COVID-19;
  • is experiencing symptoms or caring for a family member experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework;
  • is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • is caring for a family member who is subject to a quarantine or isolation order or guidelines, or who has been advised to self-quarantine by a healthcare provider; or
  • is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Amount of Leave:  Full-time employees are eligible for up to 40 hours of SPSL for the reasons stated above.  Part-time employees who work a normal weekly schedule are entitled to SPSL in an amount equal to the total number of hours they are typically scheduled to work in a one-week period.  Part-time employees with variable schedules should receive SPSL that is either 1) seven times the average number of hours worked each day in the preceding six months, or 2) seven times the number of hours the employee has worked for the employer if the employee has worked for the employer for less than six months but more than seven days.  Employees who have worked seven days or fewer can expect to receive SPSL equal to the total number of hours they have worked for the employer.

Additional SPSL:  Employees are also entitled to an additional 40 hours of SPSL if they or their family member for whom they are providing care tests positive for COVID-19.  This brings the total available hours of SPSL to 80 hours for full-time employees.  The additional SPSL should be pro-rated for part-time employees per the calculations stated above.

Employers may require employees who test positive for COVID-19 to submit to a diagnostic test on or after the 5th day of the initial positive test and to provide documentation of the result.  If the employer chooses to require a test, the test must be made available at no cost to the employee.

Employers may also require employees to provide documentation of a family member’s test result before paying out the additional SPSL.  Employers are under no obligation to pay out the additional SPSL if the employee refuses to provide documentation either for themselves or a family member.

Limitations:  Employers cannot require employees to exhaust any other type of paid leave before using SPSL.  However, employers may limit the use of SPSL to a total of 24 hours for reasons related to obtaining or recovering from each vaccine or booster unless the employee provides verification from a health care provider that the employee or family member is continuing to experience symptoms related to a vaccine or booster.

NOTE:  The SPSL requirement does not relieve employers of the CAL/OSHA requirement to maintain the wages of employees who are excluded from the workplace because of a workplace exposure to COVID-19.  An employer may not require an employee to exhaust their SPSL before satisfying the CAL/OSHA exclusion pay requirement.

Retroactivity:  SB 114 is retroactive to January 1, 2022, meaning that an employee must be paid SPSL for any time previously taken off work for the reasons above and have their vacation and California paid sick leave balances replenished (if vacation or sick leave was previously applied to the absence).  The retroactive payment must be paid on or before the payday for the next full pay period after the employee makes the request for retroactive SPSL and should be reflected on the employee’s wage statement.  SPSL is in addition to any paid sick leave already required under California law, but employers who provided special COVID-related sick leave benefits to employees after January 1, 2022, in amounts equal to or greater than what SB 114 requires may credit that pay towards this obligation.

Pay Amount:  As under prior law, employees must be paid at their regular rate of pay up to a maximum of $511 per day, not to exceed $5,110, but SB 114 makes calculating the regular rate of pay easier than its predecessors.  SPSL for non-exempt employees must be calculated using either (i) the employee’s regular rate of pay during the workweek in which they take the leave regardless of whether they worked overtime that week, or (ii) by dividing the total wages, including overtime, by the total hours worked in the past 90 days of employment.  SPSL pay for exempt employees should be calculated in the same manner as the employer uses to calculate wages for other forms of paid leave.

Notice:  Within seven days of the law’s enactment, the Labor Commissioner will publish a notice that employers are required to post or provide to employees.  For employees who do not frequent the workplace, the notice may be e-mailed.

Paystubs:  Prior SPSL law required employers to list the amount of available SPSL on wage statements or in a separate writing.  Under the new law, employers only need to list the amount of leave that is used.  If an employee has not yet used any SPSL, their statement must list “zero.”

Tax Credit & Recordkeeping:  Although the Governor also signed SB 113 yesterday, which provides for a variety of tax credits and relief to businesses in certain circumstances, there does not appear to be a specific tax credit to neutralize the cost of paying out SPSL.  Even so, we recommend seeking advice from your tax advisor on whether the benefits of SB 113 apply to your business.  It is also still very important to keep good records of SPSL use and to preserve them for at least three years as required by law.

Firefighters and In-Home Service Providers:  SB 114 contains different rules for these categories of workers.  If you have employees who fit these descriptions, contact an SMT employment law attorney for more information.

Compliance Deadline:
Employers covered under SB 114 must comply within 10 days of its enactment, so it is important to act quickly to comply with the new law’s notification, paystub and paid sick leave requirements.

If you have questions or need help navigating the new California SPSL law, please contact an SMT employment law attorney at info@smlaw.com.

Kari J. Brown

CAL/OSHA Updates Its Model COVID Prevention Plan

Under the CAL/OSHA Emergency Temporary Standards (ETS), all California employers are required to develop and implement a written COVID Protection Plan (CPP) that contains business-specific information on topics ranging from training on personal protective equipment to identifying safety hazards in the workplace.  To assist employers with this obligation, CAL/OSHA made available a Model CPP template on their website back in late 2020.  The Model CPP was recently updated on January 14, 2022 to reflect changes to the ETS that went into effect in January.  The template can be found here.

If you have a CPP currently in place, please take the time to compare the Model CPP against your current plan to ensure it is compliant.  If you haven’t reached this item on your to do list, we recommend utilizing the Model CPP as a starting point. As always, SMT’s employment attorneys are here to assist you with this process.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown