New COVID-19 supplemental paid sick leave signed into California law

As anticipated in our prior alert, on February 9, 2022, California Governor Gavin Newsom signed into law legislation reviving COVID-19 supplemental paid sick leave (SPSL) under a new California Labor Code Section 248.6. The new SPSL requirement will take effect on February 19, 2022 and applies retroactively to January 1, 2022. The law’s provisions are set to expire on September 30, 2022.

Below we address common questions about the new law and what it means for employers.

Which employers must comply with this law?

The new SPSL obligations generally apply to California employers with more than 25 employees.

While smaller employers with 25 or fewer employees are not covered by this law, they may be covered by local supplemental paid sick leave ordinances.

How much SPSL are covered employers required to provide and when?

Like its 2021 predecessor, the new law provides for up to 80 hours of SPSL for various COVID-19-related reasons. However, there are notable differences this time around. Instead of simply providing for up to 80 hours of SPSL, the new law splits the hours into two buckets:

1.  Up to 40 hours of SPSL for an employee who is unable to work or telework due to any of the following qualifying reasons:

• The 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 or a local public health officer who has jurisdiction over the workplace).
• The employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
• The 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 employee is 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.
• The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
• The employee is caring for a family member who is subject to an order or guidance described in the first bullet or who has been advised to isolate or quarantine as described in the second bullet.
• The 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.

2.  Up to 40 hours of additional SPSL for an employee who is unable to work or telework because the employee tested positive for COVID-19 or cares for a family member who tested positive for COVID-19.

For each vaccination or vaccine booster, an employer may limit the total SPSL to 3 days or 24 hours, unless the employee provides verification from a healthcare provider that the employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

An employee does not need to exhaust the 40 base hours of SPSL before using the additional 40 hours of SPSL. For this second bucket of SPSL, covered employers may require documentation of test results. Specifically, covered employers may require the employee to submit to a diagnostic test on or after the fifth day following the initial positive COVID-19 test and provide documentation of the results. However, the employer must make the diagnostic test available at no cost to the employee.

Similarly, covered employers may require employees to provide documentation of the family member’s test results. If the employee refuses to provide documentation of the COVID-19 test results, the employer is not obligated to provide the additional 40 hours of SPSL.

The amount of SPSL entitlement is pro-rated for workers who are not full-time, as the new law specifically provides different methods for calculating the amount of leave for employees who work part time or who have variable schedules. Generally, such workers will be eligible for SPSL based on the number of hours they typically work in a week.

Are there caps on the amount of SPSL pay?

Yes; the new law provides for the same caps on SPSL pay as in 2021. Specifically, covered employers are not required to pay more than $511 per day or $5,110 in aggregate to a qualifying employee, unless federal legislation is enacted that increases these amounts beyond what was previously included in the federal Families First Coronavirus Response Act.

What is the retroactive SPSL requirement?

The retroactive SPSL obligation is similar to that in the 2021 law. If an employee took leave between January 1 and February 19 for a qualifying reason that was either unpaid or not paid at the level required by this new law, the employee may make an oral or written request for retroactive payments. Employers are not required to make retroactive payments without such a request, but the law does not expressly prohibit them from doing so or address if such payments would satisfy obligations without a corresponding request from the employee. 

Retroactive payments must be paid on or before the payday for the next full pay period after the request is made. However, an employer may require an employee to provide documentation of a positive test if the employee requests retroactive leave for a positive test or because they were caring for a family member with a positive test in relation to the second bucket of 40 SPSL hours.

How does SPSL interact with related leave requirements?

The new law’s SPSL requirement is in addition to rights under traditional state and local paid sick leave ordinances. However, local COVID-19 paid sick leave ordinances may satisfy the SPSL requirement depending on whether paid sick leave was provided for the same reasons and compensated at an amount equal to or greater than the SPSL pay requirements under this new California law.

In addition, the new law specifically prohibits employers from requiring an employee to use any other paid or unpaid leave, paid time off or vacation provided to the employee before or in lieu of using SPSL.

Similarly, it prohibits employers from mandating that an employee exhaust SPSL before satisfying any requirement to provide leave related to COVID-19 under any Cal/OSHA COVID-19 Emergency Temporary Standard, which includes Cal/OSHA exclusion pay requirements. This is a notable change from the 2021 predecessor law, which allowed employers to require an employee to use SPSL before being obligated to pay exclusion pay under Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS).  

Are there paystub and notice requirements?

Yes; covered employers must provide an employee with a written notice setting forth the amount of SPSL that the employee used on either the employee’s itemized wage statement or a separate writing provided on the designated payday with the wage payment. The employer must list zero hours if the worker has not used any SPSL and must list SPSL hours separately from traditional paid sick leave, but the new law does not address whether the paystub must differentiate between the two SPSL buckets. These paystub requirements become enforceable the next full pay period after the new law takes effect on February 19. They also reflect a welcomed change from the 2021 predecessor, which required statements to list the available (rather than used) hours. The change should reduce the burden on employers as they are not required to make complicated calculations before employees even request leave.

In addition, covered employers must provide notice of entitlements under Labor Code Section 247, as they do for traditional California paid sick leave. Covered employers generally are required to display a poster in a conspicuous place with information about the employee’s rights to receive SPSL. The law contains a limited exception to satisfy this SPSL notice requirement through electronic means (eg, email) if employees do not frequent the workplace. The Labor Commissioner is required to make available a model notice within seven days.

Are there tax credits to offset the related costs for employers?

This new law does not directly provide for tax credits specific to SPSL costs. However, Governor Newsom signed a separate bill providing for various tax credits, grants and reliefs for some businesses in California that may provide general relief depending on the circumstances.

Next steps

Over the next week, covered employers are encouraged to prepare to comply with the new SPSL requirement. Steps to consider include preparing an updated SPSL policy and process for handling related leave requests, planning for the paystub requirement, keeping watch for the Labor Commissioner’s model notice and evaluating the need for any retroactive payments.

If you have any questions regarding this development or other COVID-19 related requirements, please contact the authors, your DLA Piper relationship attorney or the DLA Piper Employment group at CoronavirusEmployment@dlapiper.com.