Background: Newsom’s prior CA SPSL via Senate Bill 95 expired on September 30, 2021 and it applied to employers with 26 or more employees.  We previously posted about it here.

Governor Newsom signed into law a new version of SPSL that is effective February 19, 2022. However, it is retroactive to January 1, 2022.

What is it? A COVID-19 supplemental paid sick leave bill that provides sick leave to employees, like the prior version that expired on September 30, 2021.  The new CA SPSL was signed into law as Senate Bill 114 (SB 114) and it is entirely new, and does not overlap with any leave granted under the prior CA SPSL law that expired September 30, 2021.

The employer should make the CA SPSL available for immediate use, upon the oral or written request of an employee. A covered employee is an employee who is unable to work or telework for an employer because of a qualifying reason further explained in this article.

Which employers must comply? Public or private employers with 26 or more employees.

When is it effective?  February 19, 2022; however, the leave is retroactive back to January 1, 2022.

Note: if the leave was paid at or above the level of SB 114’s requirements, no retroactive pay is due.

Does an employer need to provide retroactive payment for qualifying leave taken on or after January 1, 2022? Yes. The retroactive payment should be paid on or before the pay date for the next full pay period after oral or written request from the employee.

Note: if the leave was paid at or above the level of SB 110’s requirements, no retroactive pay is due.

There are notice and paystub requirements included.  A model notice will be available within seven days, and employers may post the notice in the workplace or provide electronically or by mail to remote workers.

A worker’s paycheck stub must also reflect any CA SPSL leave used as an item set forth separately from regular paid sick days. If the employee has not used any SPSL, the employer can enter zero hours on the SPSL line item.

When does it expire?  September 30, 2022

What is the amount of leave?

  • Full-time workers are entitled to 80 hours of paid sick leave;
  • The new SPSL establishes two categories of SPSL of up to 40 hours of leave in each category for different purposes and with different requirements.
    • Category #1 – up to 40 hours for COVID qualifying reasons
    • Category #2 – up to an additional 40 hours for positive COVID tests
  • Workers scheduled to work, on average, 40 hours per week in the two weeks prior to receiving the COVID-19 CA SPSL are entitled to 80 hours of leave.
  • A covered employee who is a firefighter who was scheduled to work more than 40 hours for the employer in the one workweek preceding the date the covered employee took COVID-19 supplemental paid sick leave is entitled to an amount of COVID-19 supplemental paid sick leave equal to the total number of hours that the covered employee was scheduled to work for the employer in that workweek.

Part-time workers are eligible based on hours worked.

  • Workers with a normal weekly schedule are entitled to paid leave equaling total number of hours they are scheduled to work over two weeks.
  • Part-time workers with a variable hour schedule are eligible for leave up to seven times the average number of hours the individual worked each day in the six months prior to the leave date. If the worker has worked for the employer less than six months but more than seven days, the employer should calculate the average over the entire period the employee has worked for the employer.
  • If the part-time worker has worked for the employer for seven days or fewer, the total number of hours the employee worked equals the amount of leave.

Can an employer require employees to exhaust SPSL prior to Cal/OSHA exclusion pay? No. Unlike the previous versions of CA SPSL, the employer cannot require an employee to first exhaust SPSL. Thus, employers may be required to provide significantly more paid time off for employees who are excluded from the workplace as a COVID-19 case or close contact.

Are tax credits available to subsidize cost of the CA SPSL? Not directly. Some tax credits may indirectly assist certain businesses; however, employers should work closely with their tax experts to understand if any tax credits are available that may indirectly assist with the cost of the CA SPSL.

What are the qualifying reasons for the new CA SPSL in Category #1?

A covered employee is any worker who is unable to work or telework for any one of the following reasons:

  1. The worker is subject to a quarantine or isolation “period” related to COVID-19 as defined by an order or guidelines of the CA Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace;
  2. The worker is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19;
  3. The employee is attending an appointment for themselves or a family member to receive a vaccine or vaccine booster for protection against contracting COVID-19;
  4. The employee is experiencing symptoms related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or is caring for a family member who is experiencing symptoms related to a COVID-19 vaccine or vaccine booster
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  6. The employee is caring for a family member (minor or adult child, parent, spouse, domestic partner, grandparent, grandchild, or sibling) who is subject to a quarantine or isolation period, or who has been advised to self-quarantine; or
  7. The employee is caring for a child (regardless of age) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

For reasons #3 or #4, employers may limit the total leave for each vaccine or vaccine booster to three days or 24 hours. If more leave is requested by the employee, the employer may require that the employee provide verification from a healthcare provider that the employee or family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

What are the qualifying reasons for the new CA SPSL in Category #2?

A covered employee may use up to 40 hours of SPSL if the employee tests positive for COVID-19 or a family member for whom the employee provides care tests positive for COVID-19.

The law does allow employers to require proof of positive test:

  • If the employee tested positive, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the initial test was taken and provide documentation of those results. AB 84 specifically states that the employer shall make such a test available at no cost to the employee.
  • If the employee requests to use additional leave because a family member for whom they are providing care tests positive for COVID-19, the employer may require that the employee provide documentation of that family member’s test results before paying the additional leave.

AB 84 specifically provides that an “employer has no obligation to provide additional COVID-19 supplemental paid sick leave…for an employee who refuses to provide documentation of the results of the test…upon the request of the employer.”

Can local COVID paid leave ordinances be used towards this CA SPSL mandate?  Yes, as long as the leave is provided for reasons that coincide with qualifying reasons for the new CA SPSL and the rate of pay is equal or more generous.  This can be retroactive back to January 1, 2022.  Both local COVID-19 paid leave and CA SPSL can run concurrently provided that the pay and qualifying reasons coincide.

Can an employer require a worker to use other paid leave first?  No.  This leave must be in addition to any other supplemental paid leave.  However, any other specific COVID-19 supplemental paid sick leave taken after January 1, 2022, for the same qualifying reasons & pay may run concurrently with the new CA SPSL.

What is the rate of pay for leave taken?

A covered non-exempt employee is paid using one of the two permitted methodologies:

(A) the regular rate of pay as calculated for the workweek in which the covered employee uses the CA SPSL;

(B) the regular rate of pay as calculated by dividing the covered employee’s total wages (excluding overtime premium pay) by the total nonovertime hours worked in the full pay periods of the prior 90 days of employment; provided that, for nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of SPSL.

A covered exempt employee’s benefits must be calculated in the same manner as other paid leave time provided by the employer.

In no circumstance is the employer required to pay more than $511 per day and $5,110 in the aggregate.

 

Written by: Michelle Cammayo

 

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.

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