Employment Law Bulletin | February 10, 2022
State of California Revives COVID-19 Supplemental Paid Sick Leave (Again)
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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.
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 email@example.com.
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.
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
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