by Adam N. Arce and Julie Ann Giammona
The California State Legislature is on the cusp of enacting a law that will revive COVID Supplemental Paid Sick Leave (“SPSL”). While this bill has not yet been signed into law, it will likely go into effect shortly, and will be retroactive to January 1, 2022. As currently drafted, the bill is set to expire on September 30, 2022. Below is what you need to know about SPSL.
WHO IS COVERED BY THE LAW?
The SPSL will apply to employers with more than 25 employees. It will cover all employees whether exempt or nonexempt, part-time or full-time, although the number of hours of paid leave will vary based on the number of hours an employee works. Additionally, calculating the specific rate of pay the employee is entitled to depends on whether the employee is classified as exempt or nonexempt.
HOW MUCH SICK LEAVE AND FOR WHAT REASONS MAY AN EMPLOYEE UTILIZE SPSL?
The SPSL will provide up to 80 hours of paid leave for full-time employees but will establish two different categories of up to 40 hours of leave for different qualifying reasons.
Employees that are unable to work or telework for any one of the following reasons are entitled to up to 40 hours of paid leave:
- Employee subject to quarantine or isolation due to federal, state or local order or guidance related to COVID-19;
- Employee advised by healthcare provider to isolate or quarantine due to COVID-19;
- Employee attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19;
- Employee experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework;
- Employee experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- Employee caring for a family member who is subject to an order or guidance, or is required to isolate or quarantine as described above; or
- 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.
The new law will allow for a 24-hour limit on leave time if utilized for vaccine or boosters, unless the employee provides medical documentation from a health care provider that the employee or family member is still experiencing symptoms related to COVID-19 vaccine or booster.
The amount of SPSL the Employee is entitled to is dependent on their status as a full-time or part-time employee, as well as the hours worked in the previous weeks prior to using the leave.
An employee is entitled to 40 hours of SPSL if the employee either:
- Is considered a full-time employee by the employer, or
- The covered employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave.
If your employee does not meet the above criteria, please contact Ferber law for further guidance on the applicable amount of leave under this category that the employee may take.
In addition to the time mentioned above, full-time employees will be able to access another 40 hours of paid leave if the employee or family member for whom the employee is providing care tests positive for COVID-19. So long as the employer makes a test available at no cost to the employee, the employer will be able to 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. The employer will also be able to require that the employee provide documentation for a family member’s test results before paying the additional leave, if additional leave was used for that purpose. The employer will have no obligation to provide additional leave for an employee who refuses to provide documentation of the results of the test.
If the employee is not a full-time employee, please contact Ferber law for further guidance on the applicable amount of leave under this category that the employee may take.
WHAT NOTICE IS REQUIRED?
Employers will be required to post notice of an employee’s leave rights. The Labor Commissioner shall provide a sample notice within seven days of the enactment of the law. The employer should provide the notice by email for employees that work remotely.
HOW DOES SPSL LEAVE AFFECT CAL-OSHA EXCLUSION PAY?
As currently drafted, it appears this bill will remove the ability of employers to require employees to exhaust SPSL 9 (as previously allowed) before being paid exclusion pay under Cal/OSHA’s Emergency Temporary Standards (ETS).
WHAT ARE THE RETROACTIVE REQUIRMENTS?
If an employee took leave dating back to January 1, 2022, for any of the qualifying reasons and was not paid, or not paid at the same rate required under SPSL, the employee will be able to request retroactive payment. Retroactive payment will be due on the next scheduled payday following the request of the employee.
Ferber Law will keep you apprised as SPSL is finalized. We expect the Governor to sign the law immediately upon presentation. Because the law is being enacted as a budget bill, it should go into effect 10 days after the Governor’s signature. Please contact us for further specific information relating to calculation of number of leave hours and rate of pay available for part-time employees, or any other questions. As always, Ferber Law is happy to assist.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.