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

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

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

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 5^th 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