Employment Law Bulletin | May 3, 2021

New SB 95 Supplemental Paid Sick Leave Guidance and Interactive Eligibility Tool Now Available from Labor Commissioner

In an effort to clarify some of the murkier aspects of SB 95’s COVID-19 Supplemental Paid Sick Leave (“SPSL”), the Labor Commissioner’s Office recently released updates to its Frequently Asked Questions (FAQs) website that employers might find helpful.

In particular, the FAQs now make clear that SPSL for childcare purposes “means a child’s school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.”  Under the 2020 law, SPSL could be used when a school or daycare provider was closed due to COVID-19, regardless of whether any exposure or infection had occurred onsite.  Under SB 95, the eligibility requirement is much more narrow.

Employers should also note that SPSL must be provided to eligible employees immediately upon an oral or written request.  In addition, employers are prohibited from denying a request for SPSL based on a lack of medical documentation alone.  However, the Labor Commissioner indicates that where an employer has a good reason to question the validity of the request, it may be justified in asking for additional documentation supporting the request before paying for the leave.  Employers considering this step should consult with an SMT employment law attorney before refusing to pay for the SPSL.

The Labor Commissioner’s FAQ website can be found here [1].

For more information regarding the requirements of SB 95’s Supplemental Paid Sick Leave, see our March 23 [2] and March 24 [3] bulletins.

SPSL Interactive Eligibility Tool
The Labor Commissioner’s office has also released a new interactive tool that is intended to assist employers and employees in determining eligibility for SPSL.  The tool, found here [4], is easy to use, anonymous and can be accessed in both English and Spanish.

Employers should be aware that the tool’s website, as well as the tool itself, offer detailed information for employees on how to file a claim if they believe SPSL has been wrongfully denied.  The website also contains a link redirecting workers who might be wrongly classified as independent contractors (and therefore ineligible for SPSL) to additional information regarding employer liability and risk related to their misclassified status.  Employers concerned with compliance in these areas should contact an SMT employment law attorney right away.

Although the tool accurately applies the requirements of SB 95 to a user’s answers, it is important for employers to consider applicable local ordinances that might have additional and/or different requirements before making decisions on how to apply SPSL to their business.

Another Factor to Consider for Mandatory Vaccination Programs

Over the past several months, we have discussed the various pros and cons of mandatory vaccination programs with many of our clients.  Federal OSHA has added an additional factor that must be taken into consideration: Employers who require vaccinations as a condition of employment must now keep a record of all adverse reactions if the reaction is:  (1) work-related; (2) a new case; and (3) meets one or more of the general recording criteria in defined by OSHA regulations.

According to the new FAQS recently released by OSHA, OSHA could enforce the recording requirement on employers who recommend vaccination to employees when the above three factors are met, but it is declining to do so at this time.  However, in order to be truly relieved of the recording obligation, an employee’s choice to be vaccinated must be truly voluntary.  The acceptance or refusal of the vaccine cannot affect an employee’s performance rating or professional achievement and “[a]n employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.”  If employees fear repercussion from choosing not to be vaccinated, OSHA suggests that the employee’s choice is not truly voluntary.

OSHA’s FAQs can be found here [5].

Need help determining how this new guidance applies to your business?  Contact an SMT employment law attorney for help.

Kari Brown [6]

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

Jan Gabrielson Tansil [7]  | Lisa Ann Hilario [8] | Kari Brown [6]