On February 8, 2022, Governor Gavin Newsom signed Senate Bill (SB) 114 into law, reestablishing the COVID-19 supplemental paid sick leave (SPSL) for California employers. SPSL, codified at section 248.6 of the Labor Code requires public and private sector employers with 26 or more employees to provide employees with two separate banks of COVID-19-related paid leave, each up to 40 hours. The first bank must be available to covered employees unable to work or telework due to isolation, quarantine, vaccination, or due to caring for a child whose school or place of care is closed due to Covid-19 exposure. The second bank must be available only if an employee or a family member for whom they are providing care tests positive for COVID-19.
Recently, California’s Division of Labor Standards Enforcement (DLSE) updated its FAQs, answering questions about how the law operates. Notable guidance includes:
Calculating Business Size
Labor Code section 248.6 applies to employers with 26 or more employees, including public entities. In determining whether an employer has 26 or more employees, all employees regardless of their assigned work location must be counted, including current employees working out of state. Independent contractors are excluded for headcount purposes and, for that matter, are not covered by the law.
Section 248.6 allows employees to use leave to care for family members, defined to include a child, grandchild, grandparent, parent, sibling, or spouse.
Use of a Single 80-Hour Bank Instead of Two 40-Hour Banks
If two 40-hours banks are provided by an employer, the Labor Commissioner has clarified that an employee may choose which bank they wish to use. “Without clear direction from an employee, an employer should assume that an employee, if eligible, is using the ‘COVID positive’ bank if they inform the employer that they or a family member for whom they are providing care tested positive.” However, in the alternative, an employer may choose to provide one bank of up to 80-hours that an employee may use “for any of the qualifying reasons rather than capping the leave at 40 hours unless an employee or family member tests positive.” To clarify, if separate banks are used, to qualify for more than 40-hours, the employee or a family member for whom the employee is providing care must test positive for COVID-19.
Information concerning the amount of SPSL employees used must be provided on paystubs or in another written notice employees receive on payday. This information must be displayed separately from pre-COVID statutory paid sick leave. The 2022 SPSL differs from 2021 SPSL in that the paystub must list what has been used instead of what is available to use. For example, if SPSL hours have not been used yet then the paystub or other writing issued at the time wages are paid must indicate 0. An employer is not required to have separate entries showing the amount used from each bank.
Active firefighters are not limited to 80-hours of SPSL. A firefighter who was scheduled to work more than 40 hours for the employer in the one workweek preceding the date the firefighter took SPSL is entitled to the number of hours of SPSL equal to the total number of hours for which the firefighter was scheduled during the workweek immediately preceding SPSL, capped at $511 per day or $5,110 in total.
Permissive Limits on Use and Verification
The law permits employers to seek documentation in certain circumstances.
First, an employer may seek documentation before paying an employee if an employee is using the 40-hours of 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 for a single vaccine appointment and recovery from any related side effects, an employer may seek medical certification that the employee required more time to recover from those side effects. “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, SPSL is retroactive to January 1, 2022, which means that covered employees who took qualifying leave between January 1, 2022, and February 19, 2022, can request payment for the leave if it was not paid in the amount required by Section 248.6. An employer may require documentation if the employee is requesting retroactive pay for leave that is available only if the employee or qualifying family member was positive for COVID-19.
SPSL is set to expire on September 30, 2022, however, it is important to note that an employee taking SPSL leave at the time the law expires can finish taking the full amount of SPSL available to them.