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ALERT: COVID-19 supplemental paid sick leave is back for employers with 26 or more employees!

by | Feb 10, 2022 | Covid-19 |

Today Governor Newsom signed into law 2022’s COVID-related Supplemental Paid Sick Leave (SPSL), spawned by new COVID-19 variants and record case numbers. The law applies retroactively to January 1, 2022 and extends through September 2022.

2022 SPSL: what’s covered?

This year’s SPSL applies to California employers with 26 or more employees. Employees are entitled up to 40 hours or 80 hours of SPSL, which is prorated for part-time employees. The amount of SPSL depends on the reason for the leave:

  1. Quarantine, Symptoms, or Vaccination/Booster Related: Up to 40 hours for full-time covered employees who are unable to work or telework due to the following reasons related to COVID-19, if the employee:
  • is subject to a quarantine or isolation order
  • has been advised by a health care provider to self-quarantine
  • is experiencing COVID-19 symptoms and seeking a medical diagnosis
  • is caring for a family member subject to a quarantine order or advised to self-quarantine
  • is caring for a child whose school or place of care is closed or otherwise unavailable
  • is attending a COVID-19 vaccine or booster appointment for themselves or a family member*
  • is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster*

*Employers may limit the SPSL to 3 days (24 hours) (which includes the time to get the vaccine or booster) for each vaccine or booster unless the employee provides a doctor’s note verifying continued COVID symptoms due to the vaccine or booster

  1. Positive Test Related: Up to 40 more hours (for a total of up to 80 hours) for full-time covered employees or a family member for whom the covered employee is providing care test positive for COVID-19
  • For employees who test positive, employers may request appropriate documentation (proof) of a positive test on day 5 after the employee initially tested positive and must pay for the test
  • For employees taking care of family members who test positive, the employer may request proof of positive test before paying SPSL (it is not clear whether the employer has to pay for the family member’s test)
  • Employers may deny SPSL if the employee refuses to test or provide documentation
  • Employees do not need to exhaust leave under #1 above before using additional SPSL

Additional Info

  • As with regular sick pay, employers have to use the “regular rate of pay” for hourly employees in calculating SPSL
  • Employers cannot require the employee to exhaust SPSL before exclusion pay (which applies under OSHA for workplace exposures)
  • Employers cannot require the employee to use regular paid sick leave, vacation/PTO or other paid benefit before SPSL applies
  • SPSL maxes out at 80 hours for the period between January 1 and September 30, 2022
  • Employees may decide how many hours of available SPSL to use
  • Employers must have a separate line item on pay stubs, separate from regular paid sick leave, showing SPSL
  • The Labor Commissioner will make publicly available a model notice related to SPSL

What this means for employers

Unlike last year, 80 hours of paid leave only applies if an employee presents a positive COVID-19 test result for the employee or family member; otherwise, the employee is limited to 40 hours of SPSL. It is anticipated that like last year, tax credits will be available for this year’s SPSL, but whether such is the case, and in which form, has yet to be determined.

The silver lining during the current labor shortage could be that the renewal of SPSL may give workers an incentive to stay in their jobs or entice those who left during the pandemic to return to work.

Duggan McHugh is diligently monitoring these developments and will continue to provide timely updates as they become known.