As discussed in the January 2022 edition of the ALERT, California has reinstated COVID-19 Supplemental Paid Sick Leave (“SPSL”) for public and private employers with 26 or more employees (including out-of-state employees). Senate Bill (SB) 114, which creates new Labor Code Sections 248.6, became effective on February 19, 2022, but applies retroactively to January 1, 2022. Shortly before the effective date, the Department of Industrial Relations (“DIR”) published its “2022 SPSL FAQs” guidance, available here. Covered employers should note the following guidance in particular:

1. The Two “Banks” Of SPSL

The new law provides for two, separate “banks” of up to 40 hours of SPSL for each employee. Together, the two banks result in up to 80 hours total of SPSL for full-time employees. The amount of SPSL available to part-time employees for each bank is equal to the number of hours they work in the week prior to use of the SPSL. However, that number may change for employees who work a variable schedule and decrease for newer employees.

The first bank of SPSL is automatically available to employees who cannot work or telework due to a variety of covered reasons, including the employee: (1) experiencing COVID-19 symptoms, (2) quarantining from a potential exposure, (3) isolating when infected, (4) caring for a family member subject to a quarantine or isolation period, (5) attending a vaccine-related appointment for either the employee or a family member, (6) suffering from vaccine-related side effects or caring for a family member suffering side effects, or (7) caring for a child whose school or daycare is closed due to COVID-19. The second bank of SPSL is available only if an employee, or an employee’s family member for whom the employee is providing care, tests positive for COVID-19. A family member may include a child, parent, spouse, registered domestic partner, grandparent, grandchild, or sibling.

Notably, exhaustion of one bank is not required before an employee can use the other bank. The DIR guidance provides the following example of an employee’s use of both SPSL banks: “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 also instructs that an employee may choose which bank the employee wishes to use (so long as the employee is eligible for the second bank). That said, absent clear direction from an employee, employers may assume that an employee, if eligible, is using the second bank if the employee informs the employer that the employee, or a family member for whom the employee is providing care, tested positive.

2. Retroactive SPSL

An employee may receive retroactive SPSL if the employee was unable to work due to one of the qualifying reasons between January 1, 2022 and February 19, 2022. However, the law does not require employers to automatically provide retroactive SPSL. Employees must make a verbal or written request to receive retroactive SPSL. If an employee requests retroactive SPSL that is available only if the employee or qualifying family member was positive for COVID-19 (i.e., from the second bank), an employer may request supporting documentation. The guidance instructs that acceptable forms of documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a photo of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19. In other words, the bar is not high on the supporting documentation an employee can provide.

After an employee requests retroactive SPSL, the employer has until the payday for the next full pay period to pay the retroactive SPSL. If an employee used paid sick leave or vacation time for the retroactive absence, the employee may request that the employer restore the employee’s used paid sick leave or vacation. Additionally, SPSL must be paid at the employee’s regular rate of pay for the workweek in which the leave is taken. Therefore, if an employee used vacation time to cover qualified leave previously, the employer may need to pay the difference between what was paid and what would have been paid at the regular rate of pay.

3. Requesting Documentation Of Test Results For Current SPSL

Employers may not request supporting documentation for use of the first bank of SPSL (unless an employee requests more than 24 hours for recovery from vaccine-related side effects). For the second bank of SPSL, employers may request that the employee provide documentation of a positive test result before paying the employee. The DIR guidance instructs that if the employee fails to provide the test result documentation (including documentation for a family member), then the employer may refuse to provide the second bank of SPSL.

The guidance advises that an employee may take an over-the-counter rapid test (Antigen) or a PCR test at a testing facility. The SPSL law does not specify the type of test and, unlike Cal/OSHA’s COVID-19 Emergency Temporary Standard that states a positive test result should not be self-administered and self-read, does not place conditions on how the test is administered in order to qualify for SPSL. Thus, a photo of a positive over-the-counter rapid test may be sufficient.

Nonetheless, the guidance also states that an employer has the ability to require an employee to get a COVID-19 test in certain circumstances. The SPSL law provides that an employer may require a test after five days have passed since the employee tested positive for COVID-19. Any test required by the employer must be made available by the employer at no cost to the employee. The guidance instructs that “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. But, if the employee fails to take such a test required by the employer, the employer may deny the second bank of SPSL for any leave taken after the time the employer provides the test.

4. Wage Statement Requirement

The new law requires employers to provide employees with written notice of the amount of SPSL that the employee has used through the pay period on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. The DIR guidance confirms that this requirement differs from the wage statement requirement for 2021 SPSL because the wage statement must list the amount of 2022 SPSL that has been used instead of the amount of SPSL that is available for the employee to use. The guidance further states that an employer is not required to have separate entries showing the amount of SPSL used from each bank. If no SPSL has been used yet, then the employer must indicate 0 hours of SPSL used.

5. Conclusion

The requirement to provide SPSL remains in effect until September 30, 2022. Employers with California employees should review and monitor the DIR’s SPSL guidance, which the DIR continues to update on an ongoing basis. Employers with any questions on the new SPSL law should seek legal advice to fully understand their responsibilities.

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About The Author

Robert K. Foster is an Associate with Sheppard, Mullin, Richter & Hampton LLP in the firm’s San Diego (Del Mar) Office. Mr. Foster represents employers in various types of employment litigation, including class action wage and hour claims; PAGA claims; and discrimination, wrongful termination, harassment and retaliation lawsuits. In addition, he also provides strategic advice to employers on a wide range of employment issues, including wage and hour compliance, employee classification, and OSHA matters. He is a frequent contributor to the California Labor and Employment ALERT Newsletter and several other articles and is a contributing author to the Employer’s Guide to COVID-19 and Emerging Workplace Issues.

Robert litigates actions involving trade secret claims, unfair competition and enforcement of restrictive covenants and non-competes. He also handles various commercial litigation disputes, including breach of contract, breach of fiduciary duty, fraud, tortious interference with contract, unfair competition and shareholder derivative claims.