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On February 7th, the California state Legislature passed a new COVID-19 Supplemental Paid Sick Leave (“SPSL”) law and Governor Newsom signed the bill into law two days later. The new SPSL takes the place of the previous SPSL (SB 95), which expired last September. The law creates new California Labor Code Section 248.6 and takes effect on February 19th. The new SPSL is explained in detail below.
Effective Dates. The law is retroactive to January 1, 2022 and is effective through September 30, 2022. Any retroactive SPSL must be paid on or before the payday for the next full pay period following an employee’s oral or written request.
Covered Employers. Like the previous SPSL, the law only applies to employers with 26 or more employees.
Amount of Leave. There are two sets of SPSL available to employees.
Up to 40 hours are available if an employee cannot work or telework because:
- The employee is subject to a quarantine or isolation period related to COVID-19 (if covered by multiple quarantine or isolation periods, then the longest one applies) or caring for a family member who is;
- The employee is advised by a health care provider to isolate or quarantine due to COVID-19 or caring for a family member who is;
- The employee is attending a vaccination appointment for themselves or a family member to receive a COVID-19 vaccine (including boosters);
- The employee or employee’s family member is experiencing symptoms related to a COVID-19 vaccine (employers may limit this time to 3 days or 24 hours per dose unless employee provides verification from health care provider);
- The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis; and/or
- The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
Up to 40 hours of additional leave is available to employees who test positive for COVID-19 or need to care for a family member who tests positive. If an employee is taking the additional leave, the employer may require the employee to provide supporting documentation and take a COVID-19 test after 5 days.
Rate of Pay. For non-exempt employees, the leave is paid in the same manner as the "regular rate of pay" for the workweek in which the employee uses the SPSL or by dividing the employee’s total non-overtime wages by total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment.
For exempt employees, the leave is paid in the same manner as other forms of paid leave time. Like the previous SPSL, pay is capped at $511 per day and $5,110 in total for both exempt and non-exempt employees.
Interaction with Other Leaves. Unlike the previous SPSL iteration, employers may no longer require employees to exhaust their SPSL before using exclusion pay under the Cal-OSHA ETS. This means that most absences due to workplace exposure to COVID-19 will not be covered by an employee’s SPSL.
Moreover, SPSL is in addition to any paid sick leave provided to employees under California’s paid sick leave law and employers may not require employees to use any employer-provided leave prior to using SPSL or in lieu of.
However, any leave taken on or after January 1, 2022 under a local or federal COVID-19 paid leave may be counted against an employee’s SPSL bank, provided the leave was provided for the same reasons and in an amount equal to the compensation for SPSL.
Pay Stubs. An employee’s pay stub or a separate writing provided on the designated pay date must show the amount of SPSL that the employee has used (previous SPSL required pay stub to show the amount of SPSL the employee had available). This means that if the employee had not used any time yet under the SPSL, the pay stub should reflect "0 hours." This requirement is not enforceable until the employer's next full pay period following the date that the law takes effect (or February 19th).
Notice. Employers must post a notice issued by the DLSE in the workplace. The notice may be emailed to employees who do not frequent the workplace on a regular basis.
Action Plan. Employers should begin preparing updated sick leave policies now to incorporate the new SPSL law. Additionally, employers should check the DLSE’s website to see when the notice is issued and post the notice in the workplace once available. Importantly, remember that absences due to COVID-19 exposure at the workplace must be paid under Cal-OSHA’s exclusion pay requirement, not SPSL. This includes when an employee must quarantine because they were exposed to someone at work who had COVID-19 or when an employee contracts COVID-19 from the workplace.
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