Creating COVID-19 Supplemental Paid Sick Leave Extended Through December 31, 2022

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On September 29, 2022, Governor Gavin Newsom signed Assembly Bill (AB) 152, extending the obligation of employers with 26 or more employees to provide COVID-19 supplemental paid sick leave (SPSL) through December 31, 2022. The text of AB 152 can be found here https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB152

Importantly, the bill doesn’t require employers to provide any additional leave. When originally enacted, SPSL required covered employers to provide paid COVID-related leave through September 30, 2022. The extension of SPSL does not require employers to provide new or additional leave. Instead, the up to 80 hours of SPSL that employees could have used between January 1, 2022 and September 30, 2022 (the original expiration date) must continue to be available through December 31, 2022, and possibly slightly beyond 2022 if an employee begins a covered absence at the end of 2022 that continues, uninterrupted, into 2023.

Accordingly, if employees have used all their available SPSL hours before October 1, 2022, and experience another qualifying absence sometime between October and the end of the year, they are not eligible for additional SPSL and will need to use another form of paid leave like vacation, California Healthy Workplaces, Healthy Families sick leave, etc. to receive payment for the absence. However, Employees may be eligible for unpaid job protection leave under the California Family Rights Act (CFRA) and Family Medical Leave Act (FMLA) should their illness qualify as a “serious health condition”.

If employees have not used any, or have used only a portion of their 2022 SPSL, they will have access to this paid leave for the remainder of 2022. This extension also has ramifications for employers with 100 or more employees worldwide who must comply with San Francisco’s permanent public health emergency leave ordinance that takes effect on October 1, 2022. Under the public health emergency leave ordinance, employers will be able to count any SPSL an employee uses between October 1 and December 31, 2022 against the employer’s obligation to provide up to 40 hours of public health emergency leave during that period. COVID-19 is still considered a public health emergency.

Additionally, employers must remember that additional local SPSL ordinances remain in effect in Long Beach, the City of Los Angeles, unincorporated Los Angeles County, and Oakland. As a result, they will also need to contend with compliance obligations under these local laws.

Currently, if an employee uses SPSL because they test positive for COVID-19, an employer can require that the employee take a diagnostic test on or after the fifth day after the initial test and provide documentation of those results. As amended, the law additionally provides that “if the diagnostic test is positive, the employer may also require the employee to submit to a second diagnostic test within no less than 24 hours.” The employer is required to pay for the tests.

The extended law continues to allow employers to deny SPSL if the employee refuses to take a diagnostic test.

In addition to extending SPSL through December 31, 2022, the bill creates the California Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program. AB 152 establishes the California Small Business and Nonprofit COVID-19 Relief Grant Program within the Governor’s Office of Business and Economic Development (GO-Biz) to assist qualified small businesses or nonprofits that are incurring costs for COVID-19 supplemental paid sick leave. The bill would require GO-Biz to provide grants to qualified small businesses or non-profits, as defined in the Act. These provisions are repealed on January 1, 2024. The grants are for reimbursement of COVID-19 SPSL paid to employees between January 1, 2022 through December 31, 2022. Applicants must provide proof of payment by submitting payroll records. The maximum grant per applicant is $50,000. Grants received will not count as gross income for state tax purposes. A link to California’s GO-Biz site is here. https://business.ca.gov/about/about-go-biz/

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