March 2022
California’s new 2022 COVID-19 Supplemental Paid Sick Leave (“SPSL”) law took effect on February 19, 2022, requiring covered employers to once again provide workers with additional paid sick leave related to COVID-19. While some of the provisions of the 2022 SPSL law are similar to those of the state’s prior SPSL law that expired in September 2021, there are also differences between the two laws. As a result, it is important for employers to become familiar with the new law and formulate new policies, rather than simply relying on their prior policies and practices.
As an overview, the 2022 SPSL law requires all private and public employers with 26 or more employees, including those with collective bargaining agreements, to provide covered employees with up to 80 hours of COVID-19 related paid sick leave from January 1, 2022 through September 30, 2022. The California Labor Commissioner published FAQs to help clarify some portions of the SPSL and a required informational poster (in both English and Spanish) that employers are required to place at the worksite where employees can easily read it. If covered employees do not frequent the workplace, employers may disseminate the required posters by electronic means.
Below is a summary of some of the key provisions of the 2022 SPSL law that apply to employers generally. While not the focus of this advisory, some employers should be aware that the 2022 SPSL law also contains special provisions applying to firefighters and providers of in-home supportive and/or waiver personal care services.
“Covered Employees” Defined
A covered employee is any employee who is unable to work or telework because of one of the law’s specified reasons related to COVID-19, as discussed below. SPSL is not available to independent contractors. However, the Labor Commissioner has specifically warned employers in the FAQs that any worker who has been misclassified as an independent contractor, but is in fact an employee otherwise covered by the new law, is entitled to SPSL.
Reasons Qualifying for SPSL
The 2022 SPSL law provides for two separate banks of leave, each of which allows for up to 40 hours, for a potential of 80 hours of leave for full-time employees. Which of the two leave banks that applies depends on the reasons for which the paid leave is needed, and these reasons are broader than those permitted under the prior law.
The first bank of SPSL is available to covered employees who are unable to work or telework due to any one of the following reasons:
- Caring for Oneself: The covered employee is (i) 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 Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace), (ii) has been advised by a healthcare provider to isolate or quarantine due to COVID-19, or (iii) is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a Family Member: The covered employee is (i) caring for a qualifying family member who is either 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 Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace), or has been advised by a healthcare provider to quarantine due to COVID-19, or (ii) caring for a qualifying child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
- Vaccine-Related: The covered employee or a qualifying family member is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.
The second bank of SPSL is available to covered employees who are unable to work or telework because either they themselves or a qualifying family member for whom they are providing care tests positive for COVID-19.
“Family Member” and “Child” Defined
Similar to the prior SPSL law, a qualifying “family member” under the 2022 SPSL law includes a child, parent, spouse, registered domestic partner, grandparent, grandchild, or sibling. A “child” can include a biological, adopted, or foster child, a step-child, legal ward, or child to whom the employee stands in loco parentis. A “parent” includes a biological, adoptive, or foster parent, step-parent, or legal guardian of the employee or the employee’s spouse or registered domestic partner or person who stood in loco parentis when the employee was a minor child.
Retroactive SPSL for Leave Taken Between January 1, 2022 and February 19, 2022
Although the 2022 SPSL law became effective on February 19, 2022, the requirement to provide SPSL is retroactive to January 1, 2022. This means that a covered employee who took qualifying leave between January 1, 2022 and February 19, 2022, but was not paid in the amount required under this law, has the right to ask the employer for a “retroactive” payment equal to the required amount. This “retroactive” payment is only required if the covered employee makes an oral or written request on or after February 19, 2022 to be paid for leave that qualifies.
If the employee who requests retroactive SPSL was fully paid, but their prior leave was deducted from another leave bank that the employer provides, the employee may request that the leave deducted from the non-SPSL bank be restored and the deduction be made to the SPSL leave bank. The FAQs clarify that the decision to restore used time is the employee’s decision.
Timing for Making Leave Available
The employer must immediately make the SPSL available to a covered employee upon his or her oral or written request. The leave itself is not conditioned on an employee providing any medical certification. However, payment for the leave taken may be conditioned upon documentation in certain circumstances, as discussed further below.
Requesting Documentation before Paying the Covered Employee
There are several situations where an employer may request documentation from an employee before paying him or her paid sick leave.
First, the 2022 SPSL law permits the employer to request documentation if an employee is using the SPSL that is only available after a positive test. In such circumstances, the employee must provide the test results upon the reasonable request of the employer. If the employee fails to provide the result of the test, then the employer may deny pay for any leave taken.
Second, when an employee uses more than three days or 24 hours of leave for a single vaccine appointment and recovery from any related side effects, an employer may seek a medical certification that the employee required more time to recover. The FAQs clarify that medical certification in this context would likely be a note from a health care provider that the employee or family member continued to have vaccine side effects.
Third, an employer may also request documentation when the employee is seeking retroactive pay for leave taken due to the employee’s own or family member’s positive COVID-19 test. According to the FAQs, this documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.
Finally, the Labor Commissioner recognizes that it may be reasonable under certain circumstances to ask for documentation before paying the sick leave when the employer has information indicating that the covered employee is not requesting SPSL for a valid reason. An example of such reasonable circumstances, as stated in the FAQs, is the situation where a covered employee tells an employer that he or she has to stay home due to a local quarantine order or recommendation, but the employer subsequently learns that the covered employee was out at a ballpark.
Timing of Payment for SPSL
For SPSL taken on or after February 19, 2022, the employer must provide payment by the payday for the next regular payroll period after the sick leave was taken.
For retroactive SPSL taken between January 1, 2022 and February 19, 2022, the employer will have until the payday for the next full pay period after the employee’s request for retroactive SPSL to pay the retroactive SPSL.
Itemized Paystubs or Separate Writings
Employers are required to provide covered employees with written notice of the amount of SPSL that he or she has used through the pay period in which it was due to be paid on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. This differs from the prior law that required the paystub to list the number of hours available for use. If no hours have yet been used by the employee, then the paystub or other writing issued at the time wages are paid must indicate a “0.”
For retroactive SPSL, the amount of SPSL leave hours used should be listed on the itemized wage statement or separate writing that is provided on the payday for the next full pay period after the employee’s request for retroactive SPSL.
Record Keeping Requirement
Employers are also required to keep records for a three-year period on the SPSL days accrued and used. Those records must also be made available to the Labor Commissioner or employee upon request.
What should employers do now?
- Employers should become familiar with the 2022 SPSL law and develop new policies and practices consistent with the new law.
- Employers should update their itemized wage statements to insert a separate line item that discloses the amount of SPSL that employees used through the pay period in which it was due to be paid. Alternatively, employers may develop a separate writing that provides this same information as long as it is provided to employees on the designated pay date with the employees’ payment of wages.
- Employers should properly post the required notice in a place at the worksite where employees can easily read it. If covered employees do not frequent the workplace, employers should disseminate the required posters by electronic means.
- Employers should monitor the Labor Commissioner’s FAQs for updates. As the 2022 SPSL law continues to develop, we suspect that the Labor Commissioner may periodically update the FAQs to address new areas in need of clarification, which it did under the prior SPSL law.
If you have any questions about the 2022 SPSL law, or any other issue relating to employment law, please contact one of our attorneys listed below.
| Shareholders | Associates | |
| Eric C. Bellafronto | Ernest M. Malaspina | Sean Bothamley |
| Karin M. Cogbill | Richard M. Noack | Shirley Jackson |
| Jennifer Coleman | Daniel F. Pyne III | Michael Manoukian |