Breaking News: FAQs for California’s New COVID Supplemental Paid Sick Leave Released

California HR professionals: In case you were looking for something to occupy your time over the three-day weekend – look no more.  Just in time for the long weekend, the Department of Industrial Relations has been kind enough to gift us with the eagerly-awaited FAQs addressing the 2022 Supplemental Paid Sick Leave law which goes into effect on February 19^th.

The 37 questions addressed go a long way to providing clarity on most of the issues that our Helpline has been addressing over the past few weeks.  It will not be shocking to see a few more added in the near future, particularly in reference to the retroactive nature of the new law.

As a reminder, the 2022 COVID-19 Supplemental Paid Sick Leave provides covered employees up to 80 hours of COVID-19 related paid leave.  Up to 40 of those hours can be for:

• isolation and quarantine,
• receiving vaccines,
• caring for a child whose school or place of care is closed.

An additional 40 hours are available only when:

• an employee tests positive for COVID-19.
• an employee’s family member for whom the employee provides care, tests positive for COVID-19.

We strongly recommend all HR professionals take some time to carefully read through the FAQs.  While a lot of the new law is taken directly from the previous SPSL laws, a refresher is always useful; but, more importantly, the new nuances will be critical to understand and be prepared to act upon immediately.

Here is a link to the full FAQs:  2022 SPSL FAQs (ca.gov)

While not intended to be a substitute for reviewing the full set of FAQs, here 20 of the highlights:

1. Under the 2022 COVID-19 Supplemental Paid Sick Leave law, covered employees are entitled to paid sick leave that is in addition to leave that was provided under previous laws which expired on September 30, 2021.
2. Supplemental Paid Sick Leave does not apply to independent contractors. However, any worker who has been misclassified as an independent contractorbut is in fact an employee, and otherwise qualifies under the new law, is entitled to 2022 COVID‑19 Supplemental Paid Sick Leave.
3. The CA 2022 SPSL is not in addition to any local SPSL ordinance. if an employer provides a full-time covered employee 40 hours of COVID‑19-related supplemental paid sick leave pursuant to a local ordinance, those 40 hours would count toward the employer’s obligations under the 2022 COVID-19 Supplemental Paid Sick Leave law, so long as the leave provided is for a reason listed under the 2022 COVID-19 Supplemental Paid Sick Leave law and is at least at the same rate of pay as this law requires.
4. The first bank of COVID-19 Supplemental Paid Sick Leave, up to 40 hours, is available to covered employees unable to work or telework due to:
   1. Caring for yourself
   2. Caring for a family member
   3. Vaccine-related
5. The second bank of COVID-19 Supplemental Paid Sick Leave, up to 40 hours, is available only if an employee or a family member for whom they are providing care tested positive for COVID-19.
6. A general stay-at-home order does not necessarily mean that an employee is subject to a quarantine or isolation period related to COVID-19 The order or guidance must be specific to the covered employee’s circumstances.  A general stay-at-home order would not count. For example, guidance or an order of a local public health officer that directs individuals who live with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking 2022 COVID-19 Supplemental Paid Sick Leave.
7. If the covered employee took leave between January 1, 2022 and February 19, 2022, for qualifying reasons under this new law, but was not paid for this leave in the amount required under this law then the covered employee has the right to ask the employer for a “retroactive” payment equal to the amount required.
8. The oral or written request for retro SPSL must be made on or after February 19, 2022. A request made before February 19 does not count.
9. The number of hours of leave corresponding to the amount of the retroactive payment counts toward the total number of hours of 2022 COVID-19 Supplemental Paid Sick Leave that the employer is required to provide to the covered employee as long as it is for leave taken between 1/1/22 and 2/19/22, was taken for one of the qualifying reasons and was paid at the proper amount addressed in the 2022 SPSL law.
10. If the employee is requesting retroactive pay for leave that is available only if the employee or qualifying family member was positive for COVID-19, an employer may request documentation.
11. In managing the two “buckets” of SPSL, an employee does not have to exhaust the one week of COVID-19 paid sick leave that can be used for any qualifying reason before using the one week reserved for when an employee or qualifying family member tests positive for COVID-19. The two weeks do not need to be consecutive, and exhaustion of one is not required before using another.
12. The FAQs provide exhaustive detail on the two methods for calculating the SPSL pay for part-time employees, including those with a regular schedule, those with variable schedules who have worked for the employer for more than seven days, and those that have worked for the employer for seven days or fewer.
13. A covered employee is entitled to take 2022 COVID-19 Supplemental Paid Sick Leave immediately upon the covered employee’s oral or written request.  The leave is not conditioned on medical certification; however, it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the covered employee is not requesting 2022 COVID-19 Supplemental Paid Sick leave for a valid purpose.  In any such claim, the reasonableness of the parties’ actions will inform the outcome of the claim.
14. An employee may take an over-the-counter rapid test (Antigen) or a test that is scheduled at a testing facility.  The law does not specify type of test and does not place conditions on how the test is administered in order to qualify for leave.
15. The 2022 SPSL provides that an employer may require a test after five days have passed since the employee tested positive for COVID-19.  If the employee fails to take such a test required by the employer, the employer may deny pay for any leave taken after the time the employer provides the test.  Any test required by the employer must be made available by the employer and at no cost to the employee.
16. The limitation of three days or 24 hours of vaccination-related leave applies to each vaccine or vaccine booster that the employee or their family member receives.
17. Sick leave that was charged under a different leave bank must be credited back upon request. The new law is explicit in stating that if an employee was fully paid, but leave for the absence was deducted from another leave bank that the employer provides, the employee may request that leave be restored and the deduction be made in a corresponding amount from the employee’s 2022 SPSL leave bank. The decision to restore used time is the employee’s decision.
18. The 2022 SPSL differs from 2021 SPSL in that the paystub must list what has been used instead of what is available to use.  If no hours have yet been used then the paystub or other writing issued at the time wages are paid must indicate 0.
19. In addition, Labor Code Section 247.5 requires that records be kept for a three-year period on regular paid sick days and 2022 COVID-19 Supplemental Paid Sick days accrued and used.
20. Under California law, employers are required to display the required poster about 2022 COVID-19 Supplemental Paid Sick Leave in a place at the worksite where employees can easily read it. If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.