California Passes a New Version of Supplemental Paid Sick Leave
From Navigating COVID-19
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- 1 Covered Employers
- 2 Covered Employees
- 3 Definition of Family Member
- 4 Covered Reasons for Leave
- 5 Request for Leave
- 6 Calculating the Amount of Leave
- 7 Documentation of Positive Tests
- 8 Use of Unpaid Leave or Employer Provided Leave
- 9 Limitations on the Use of SPSL
- 10 Documentation of a Positive COVID-19 Test
- 11 Calculating the SPSL Rate of Pay for Non-exempt Employees
- 12 Calculating SPSL Pay for Exempt Employees
- 13 Maximum Amount of SPSL Pay
- 14 Available Offsets
- 15 Notice Requirement
On February 9, 2022, Governor Newsom signed into law a Covid Supplemental Paid Sick Leave (“SPSL”) which will become effective on February19 and will be retroactive to January 1, 2022. California’s previous Covid-19 SPSL expired on September 30, 2021.
The new law expires on September 30, 2022, however, if a covered employee is using SPSL on September 30 and the absence would continue uninterrupted past September 30, the employee gets to continue using available SPSL.
A full-time employee can take a maximum of 80 hours of SPSL during the period from January 1, 2022, to September 30, 2022, is 80 hours.
The new law was enacted as SB 114 and is codified as Labor Code section 248.6 and 248.7. To read the law see https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB114
As with the 2021 version, public and private employers with more than 25 employees will be required to comply with SPSL.
Full and part-time employees are entitled to SPSL if the employee is unable to work or telework for any of the reasons detailed in the legislation. There is no length of service requirement for the leave entitlement. The bill specifically includes firefighters, and providers of in home supportive and waiver personal care services.
Definition of Family Member
"Family member” means a child, including a biological, adopted, or foster child or step child, a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, a spouse. a registered domestic partner, a grandparent, grandchild or a sibling.
Covered Reasons for Leave
Covered employees are entitled to SPSL for the following reasons:
- The covered employee is 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 federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
- The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
- The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
- The covered employee is experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
- The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The covered employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
- The covered employee is caring for a child, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
- Employee tests positive or is caring for a family member who tests positive for COVID-19.
Request for Leave
An employer must make SPSL available for immediate use upon an employee’s oral or written request. The employee may decide how many hours of SPSL to use. An employer may not require the employee to use any other paid or unpaid time off (including paid time off (PTO) or vacation time) before allowing the employee to use SPSL.
Calculating the Amount of Leave
A full-time employee is entitled to a total of 40 hours per week of SPSL if the covered employer satisfies either of the following criteria:
- The employer considers the covered employee to work full time;
- The covered employee worked, or was scheduled to work, on average, at least 40 hours per week for the employer in the (2) two weeks preceding the date the covered employee took SPSL.
Firefighters who were scheduled to work more than 40 hours in the workweek before they take SPSL are entitled to the amount of SPSL equal to the “total number of hours that the covered employee was scheduled to work for the employer in that workweek,” which may exceed 40 hours, for qualifying reasons 1 through 7.
Because the bill counts “the total number of hours that a [firefighter] was scheduled to work,” the plain language of the statute covers scheduled overtime. Employers should include such time in the SPSL allotment provided to firefighters. Notably, the bill also does not address work schedules that vary week-to-week. Instead, the bill establishes firefighters’ SPSL entitlement based on the work hours scheduled for the week immediately preceding the week the firefighter takes SPSL. Firefighters are often scheduled to work differing hours form one week to the next. The bill does not seem to consider this in determining the amount of leave that firefighters receive.
A part-time covered employee who doesn’t satisfy either of the full-time criteria is entitled to an amount of SPSL as follows:
- If the covered employee has a normal weekly schedule, the total number of hours the employee is normally scheduled to work over one week; or
- If the covered employee works a variable number of hours, seven times the average number of hours the employee worked each day for the employer in the 6 months preceding the date the employee took SPSL. If the employee has worked fewer than 6 months but more than 7 days, this calculation shall instead be made over the entire period the covered employee has worked for the employer. If the covered employee works a variable number of hours and has worked for the employer for seven days or less, the employee is entitled to the total number of hours the employee has worked for the employer. Of course, this calculation applies to both types of available leave.
Documentation of Positive Tests
Employers are permitted to require documentation of the positive test and can deny leave to any employee who refuses to provide documentation of the positive result. There is no guidance as to the type of COVID-19 tests that are acceptable or whether the employer can require a certain type of COVID-19 test.
If the employee tests positive, the employer can require the employee submit to a diagnostic test on or after the 5th day of the initial positive test and provide the employer a copy of the results. The employer shall make the test available to the employee at no cost. Presumably, the employer can request the employee return to work if the follow up diagnostic test is negative although the law is silent on this point.
Use of Unpaid Leave or Employer Provided Leave
An employee cannot be required to use unpaid leave or employer provided leave like vacation, PTO, or sick leave prior to the use of SPSL.
If an employee is eligible for exclusion pay under the Cal/OSHA Emergency Temporary Standard, SPSL hours cannot be used to offset any exclusion pay obligation.
Limitations on the Use of SPSL
While SPSL allows for time off for vaccination, including receiving a booster, employers may limit the leave for time to attend the appointment and side effects for each vaccination or booster to 3 days or 24 hours unless the employee provides verification from a health care provider that the employee (or their family member) is continuing to experience adverse symptoms.
Documentation of a Positive COVID-19 Test
If employee requests leave because they tested positive for COVID-19 or to care for a family member who tested positive for COVID-19, then the employer may request documentation of the positive test.
Calculating the SPSL Rate of Pay for Non-exempt Employees
Non-exempt employees are to be compensated based on one of the following:
- Calculated in the same manner as the regular rate of pay for the workweek in which the employees uses SPSL.
- Calculated by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay periods of the prior 90 days worked.
Calculating SPSL Pay for Exempt Employees
Exempt employees are to be paid in the same manner as other forms of paid leave time.
Maximum Amount of SPSL Pay
An employee is entitled to a maximum of $511 per day and $5,110.00 in aggregate in SPSL pay. If an employee reaches the maximum paid leave the employee may use any other paid leave available to the employee in order to fully compensate the employee for the leave.
The amount of paid leave employees already received in 2022 before the SPSL law took effect might qualify as an offset that wholly or partially satisfies an employer’s 2022 SPSL obligations. If an employer paid an employee another benefit for leave taken on or after January 1, 2022 that paid the employee for the SPSL’s covered reasons and compensates the employee in an amount equal to or greater then what is required by the SPSL, an employer may be able to count those hours toward the number of SPSL hours it must provide an employee under the new law.
The amount paid must be a supplemental benefit and in addition to other leave benefits the employer is required to provide either pursuant to law (like sick leave under California Healthy Workplaces, Healthy Families Act) or the employers own policies (like vacation, PTO or sick leave).
In addition, if the employee used other benefits, for example, sick leave under the Healthy Workplaces, Healthy Families Act in 2022, but before the effective date of the new SPSL, the employee can request a credit or offset so that the employer applies the SPSL benefit and credits the employee back the other leave used.
The employer shall provide an employee with written notice that sets forth the amount of COVID-19 supplemental paid sick leave that the employee 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.
The employer shall list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.
Employers are required to post a notice to be developed by the Labor Commissioner about the SPSL benefit. If an employer’s covered employees do not frequent a workplace, the employer may satisfy this requirement by disseminating the notice through electronic means, such as e-mail.
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