COVID-19 Supplemental Paid Sick Leave Returns for California Employers

What is the short version?

• SPSL applies to employers with over 25 employees;
• Two buckets of paid sick leave hours are available, which total up to 80 hours for full time employees, for COVID-19 related reasons including illness, vaccines and caring for sick family members;
• Employers must identify SPSL hours used on an employee’s paystub or a separate writing;
• Hours are retroactive to January 1, 2022 in that employees who took leave for qualifying reasons without pay can receive paid sick leave, which will count against their total allotted hours;
• Documentation of a positive test is required for positive employees, those seeking to care for a positive family member and when seeking retroactive payment for their own positive diagnosis;
• Employers cannot require an employee to exhaust SPSL before paying Exclusion Pay required by Cal OSHA’s Emergency Temporary Standard ("ETS");
• At present, no tax credits are available for payment of SPSL.

What are the qualifying reasons?

An employee is entitled to SPSL, regardless of length of service, if they are unable to work or telework because:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance from the CDPH, CDC or a local public health officer who has jurisdiction over the workplace. This does not mean an order is required. If current guidance requires an employee to quarantine or isolate, they can use sick leave. https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx
2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
3. The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19. Sick leave for reasons 3 and 4 are limited to 3 days or 24 hours combined, absent a doctor’s note providing a longer time.
4. The covered employee is experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to isolate or quarantine.
7. The covered 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. This means the child’s classroom in school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2022, was exposed to, or had contracted, COVID-19.

Who is a family member?

A child (biological, adopted, foster child, stepchild, legal ward, or a child to whom the employee is acting as the parent), a parent (biological, adoptive, foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who acted as a parent when the employee was a minor child), a spouse, a registered domestic partner; a grandparent; a grandchild or a sibling.

How many hours are available?

Full Time Employees: up to 80 hours

Part-Time Employees:

• Regular schedule: the total number of hours normally scheduled to work over one week.
• Variable schedule:
  • Worked more than six months: seven times the average number of hours in the six months preceding the date of leave;
  • Worked eight days to six months: average over the course of employment;
  • Worked seven days or fewer: total number of hours worked during the days employed.

Two “buckets” of hours are available – each bucket has an equal number of hours based on the calculation above. An employee need not exhaust one bucket before using hours available in the other bucket. Thus, for a full time employee:

• 40 hours for any of the seven qualifying reasons above; plus
• 40 hours if the employee or family member for whom the employee is caring for tests positive for COVID-19.
  • For employees: Employers may require the employee submit to a COVID-19 test after the 5^th day following the employee’s first positive result and require proof of same, provided the test is at no cost to the employee.
  • For family members: employer may require documentation of the positive test to provide leave for this reason.

What is the rate of pay for SPSL?

Non-exempt employees

• Calculate the regular rate of pay for the workweek in which the employee uses SPSL; or
• Calculate the total wages, not including overtime premium pay, by the total hours worked, in the full pay periods of the prior 90 days worked.

Exempt employees are paid in the same manner as other forms of paid leave time.

An employer shall not be required to pay more than $511 per day and $5,110 in aggregate to a covered employee.

What Notice to Employees is Required?

Employers must provide written notice of the amount of SPSL the employee has used through the pay period in which it was due on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date. The employer shall list zero hours used if a worker has not used any SPSL.

The Labor Commissioner will publish a notice by February 16, 2022 which must be posted at the workplace or sent to employees who do not frequent a workplace, through electronic means, such as e-mail.

Are there credits or offsets for other paid time provided?

The Cal OSHA ETS governs California COVID-19 related workplace safety, exclusion from work and return to work and which must be followed by most California employers (except those covered by a specific aerosol transmissible disease standard which usually only applies to medical facilities).

Under the Cal OSHA ETS, there are two categories of people that need to be excluded from work and paid while in isolation or quarantine (exclusion pay), provided the exposure is work related:

1. Employees who test positive (a “COVID-19 Case”)

2. Employees who had a close contact with a COVID-19 Case during the positive person’s high risk exposure period which is 2 days before symptom onset or test specimen collection through 10 days later.

Employers cannot require employees to use SPSL when exclusion pay is due. More on exclusion pay can be found here: https://dir.ca.gov/dosh/coronavirus/ETS.html

However, if the employer provided paid leave for any of the SPSL qualifying reasons from January 1, 2022 to February 19, 2022, and that leave was not provided pursuant to California’s Paid Sick Leave law (Labor Code 246) or because of a requirement for exclusion pay, the employer is entitled to a credit against the total SPSL due the employee. Thus, if a full time employee received 24 hours of paid leave for a vaccine appointment and side effects in January 2022 under a local COVID-19 paid sick leave requirement (such as those enacted by Oakland or Long Beach), the employee would have only 56 hours of SPSL remaining.

Please reach out to your trusted Gordon & Rees attorney for further assistance.