COVID-19 Supplemental Paid Sick Leave is Still Required

Unfortunately, COVID-19 is still here and impacting the workplace, and employees are still entitled to paid sick leave if they or a covered family member is exposed to COVID-19. The 2022 COVID-19 Supplemental Paid Sick Leave (SPSL) law requires covered employees in the public or private sectors who work for employers with 26 or more employees are entitled to up to 80 hours of 2022 COVID-19 qualifying leave for isolation/quarantine while experiencing symptoms, receiving a vaccine or vaccine booster, or caring for a child whose school or place of care is closed. Furthermore, employees are covered from January 1, 2022 through September 30, 2022, immediately upon an oral or written request to their employer, with up to 40 of those hours available only when an employee or family member receives a positive test result for COVID-19.

Covered Employees - Defined

A covered employee is any employee who is unable to work or telework because of one of the law’s specified reasons related to COVID-19, as discussed below. SPSL is not available to independent contractors.

Supplemental Paid Sick Leave Initial Coverage

A full-time covered employee may take up to 40 hours of leave if the employee is unable to work or telework for any of the following reasons:

• Vaccine-Related: The covered employee is attending a vaccine or vaccine booster appointment for themselves or a family member or cannot work or telework because they have vaccine-related symptoms are caring for a family member with vaccine-symptoms. An employer may limit an employee to 24 hours (or 3 days of leave) for each vaccination or vaccine booster appointment and any consequent side effects, unless health care provider verifies that more recovery time is needed.
• Caring for Yourself: The employee is subject to isolation or quarantine period related to COVID-19 as defined by an order or guidance of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer with jurisdiction over the workplace; has been advised by a healthcare provider to quarantine; or is experiencing symptoms and seeking a medical diagnosis.
• Caring for a Family Member: The covered employee is caring for a family member who subject to COVID-19 isolation or quarantine period has been advised by healthcare provider due 19, child whose school place of care closed unavailable on the premises. This means that a child’s classroom in school or place of care was closed on or after January 1, 2022, due to a concern that a person who had been present on the school or daycare premises was exposed to, or had contracted, COVID-19. This does not include caring for a child whose school or daycare was closed before January 1, 2022. If the school or daycare was closed on or after January 1, 2022, it must have been due to a closure, or partial closure, making the care unavailable due to COVID‑19 on the premises.

NOTE: The COVID-19 related quarantine or isolation period is the period defined by an order or guidance of the California Department of Public Health (CDPH), the federal Center for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace.

Supplemental Paid Sick Leave Additional Coverage

A full-time covered employee may take up to an additional 40 hours of leave if the employee is unable to work or telework for either of the following reasons:

• The covered employee tests positive for COVID-19
• The covered employee is caring for a family member who tested positive for COVID-19. A family member includes a child, parent, spouse, registered domestic partner, grandparent, grandchild, or sibling.

Part-Time Employees: Part-time covered employees may take as leave up to how many hours they work over two weeks, with half of those hours available only when they or a family member tests positive for COVID-19.

An employer may, at its discretion, provide one bank of up to 80 hours leave for any of the qualifying reasons rather than capping the leave at 40 hours unless an employee or employee's family member tests positive.

For example, a full-time covered employee can use 10 hours from the first bank to receive a COVID-19 vaccine booster shot and recover from symptoms, 40 hours from the second bank to care for a family member that tested positive for COVID-19, and then 30 hours from the first bank to care for a child whose daycare had closed due to COVID-19 on the premises.

The guidance may be subject to change.  Therefore, it is necessary to determine which isolation and quarantine periods were in effect during any period when leave is or was sought for one of the reasons identified in the SPSL.  At the time SPSL was drafted, generally, all symptomatic individuals must isolate after exposure to COVID-19.  If a covered employee was exposed but has no symptoms and has not tested positive, the quarantine period will depend on vaccination status. Remember, in addition to these isolation and quarantine periods, an employee experiencing symptoms of COVID-19 and seeking a medical diagnosis would be entitled to leave.

Relationship to Other Forms of COVID-19 SPSL

First off, being subject to a general stay-at-home order does NOT mean that a covered employee is “subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the CDPH, the federal Centers for Disease Control and Prevention, or a local health officer with jurisdiction over the workplace" See Labor Commissioner for California DIR Posting. The order or guidance must be specific to the covered employee’s circumstances. A general stay-at-home order would not count.

For example, a local ordinance from a health officer that directs individuals who live with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for 2022 COVID-19 SPSL.

However, the 2022 COVID-19 SPSL is different than the COVID-related paid sick leave that employers provided under the federal Families First Coronavirus Response Act (FFCRA) and the California COVID‑19 Supplemental Paid Sick Leave laws in 2020 and 2021. These federal law expired on December 31, 2020 and the previous SPSL expired September 30, 2021. The new law allows covered employees to take up to 40 hours of COVID-19 related sick leave during the period January 1, 2022 to September 30, 2022, regardless of whether they took such leave under the previous laws.

Furthermore, an employer cannot require that an employee use 2022 COVID-19 Supplemental Paid Sick Leave when they have excluded an employee for workplace exposure to COVID-19 as required by the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS). Cal/OSHA’s ETS on COVID-19 Prevention requires employers to exclude employees from the workplace under certain circumstances. While the employee is excluded, their employer must maintain their pay and benefits in the form of exclusion pay. When an employee is excluded by their employer and entitled to exclusion pay, an employer may not require the use of 2022 COVID-19 Supplemental Paid Sick Leave before providing exclusion pay. This is a change for the new law, previously the 2021 SPSL did allow an employer to require an employee to exhaust SPSL before providing exclusion pay.

Verification and Enforcement

An employer may not deny a worker 2022 COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a health care provider.  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.

Although an employer cannot deny 2022 COVID-19 Supplemental Paid Sick Leave solely for lack of a medical certification, 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.

The 2022 SPSL permits the employer to seek documentation before paying an employee if an employee is using the COVID-19 Supplemental Paid Sick Leave that is only available after a positive test.  In such circumstances, the employee must provide the test results upon the reasonable request of the employer.  If the employee fails to provide the result of the test, then the employer may deny pay for any leave taken. 

However, when an employee uses more than three days or 24 hours for a single vaccine or vaccine booster appointment and recovery from any related side effects, an employer may seek medical certification that the employee required more time to recover from those side effects. Medical certification in this context would likely be a note from a health care provider that the employee or family member continued to have vaccine side effects.

For example, if a covered employee informs an employer that the covered employee is subject to a local quarantine order or recommendation, has to stay home, and qualifies for 2022 COVID-19 SPSL, but the employer subsequently learns that the covered employee was out at a baseball game, the employer could reasonably request documentation.

2022 SPSL law provides that an employer may require a test after 5 days have passed since the employee tested positive for COVID-19.  If the employee declines 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.  Making a test available means ensuring the employee has a rapid test in hand or securing an appointment at a testing facility for the employee.  A test has not been made available by the employer if it has not been received by the employee. 

Payment of Leave

Payment: If an employee took leave for one of the reasons identified above between January 1, 2022 and February 19, 2022, and that leave was either unpaid or compensated at a rate less than the employee’s regular rate of pay, the employee may also request a retroactive payment. Payment is at the employee’s regular or usual rate of pay (what the employee makes in a given pay period), not to exceed $511 per day and $5,110 in total.

If an employer voluntarily paid leave time before the 2022 COVID-19 Supplemental Paid Sick Leave law became effective, then the employer may receive a credit toward the requirements in the new 2022 COVID-19 Supplemental Paid Sick Leave law. For example, an employer may have already voluntarily provided a covered employee with other COVID-19 related paid sick leave in 2021, then an employer can receive a credit for those sick leave hours that were voluntarily paid, under the following conditions:

• The leave taken by the covered employee and paid by the employer must have been for one of the qualifying reasons under the 2022 COVID-19 Supplemental Paid Sick Leave Law;
• To pay for this other supplemental benefit, the employer did not require the covered employee to use any other paid leave or paid time off available to the employee under a policy that is not specific to COVID-19, or vacation time;
• The employer paid for the leave taken at a rate equal to or greater than what is required under the 2022 COVID-19 SPSL.

Calculating Wages Under SPSL Law

The employer calculates wages for exempt covered employees in the same manner as for other forms of paid leave time. For nonexempt employees, the regular rate of pay is determined by one of the following:

• Calculated in the same manner as the regular rate of pay for the entire period in which the employee uses paid sick time, whether or not the employee actually works overtime in that pay period; or
• Calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment; provided that, for nonexempt employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of COVID-19 supplemental paid sick leave.

Compliance with SPSL

Covered employees using or attempting to exercise their rights to 2022 COVID-19 SPSL law, including both the right to paid leave and other rights such as timely payment and written notice of available leave, are protected from retaliation and discrimination. A covered employee who experiences such retaliation or discrimination can file a claim with the Labor Commissioner’s Office. You should contact the attorneys at Freeburg & Granieri, APC to discuss how we can help you protect yourself and ensure compliance with the 2022 COVID-19 SPSL.