The 2022 Emergency Paid Sick Leave standards were signed into law on February 9, 2022, and are retroactive to January 1, 2022. The law creates new California Labor Code Section 248.6 and takes effect on February 19, 2022.
Time Period Covered
It applies to all employers with 26 or more employees and will be retroactive to January 1, 2022. The provision is set to expire on September 30, 2022.
Employee must work at an employer with 26 or more employees. The new law does not apply to small employers with 25 or fewer workers. However, remember that small employers still must comply with Cal/OSHA exclusion pay rules.
Employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to the following reasons:
- The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
- The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
- The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to certain limitations.
- The 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.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
- The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
- If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: Employers allowed to condition payment of SPSL upon the employee providing a positive test for themselves or the family member they are caring for.)
Required Sick Pay Benefits
Employees are entitled to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above. Part-time employees are entitled to a proportional amount based on how many hours they normally work.
Full-time employees are entitled to an additional 40 hours of paid leave for a positive test – so long as they show proof and part-time employees are entitled to a proportional amount based on their normal hours (No. 8 above).
The total paid sick leave is capped at 80 hours for the period between January 1, 2022 to September 30, 2022.
Notice And Pay Stub Requirements
Similar to regular sick pay requirements, employers are required to disclose to employees how much paid sick leave they have used in each pay period. The easiest way to do this is the paystub, but the law allows it to be on another writing as well.
The law specifies that the employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave. The prior law required an employer show how much was available – now the employer must show amount used.
Rate of Pay
Employers are obligated to pay up to $511 per day or up to $5,100 in the aggregate.
2022 SPSL Definition of Family Member
For purposes of SPSL, “family member” means parent, child, spouse, registered domestic partner, grandparent, grandchild, and sibling. This definition is different than the FMLA and CFRA definitions so it is important to pay attention to the distinctions.
An employer may limit the amount of SPSL an employee uses to get a vaccine or vaccine booster shot and to recover from symptoms to 24 hours unless a health care provider confirms that the employee or family member continues to experience symptoms related to a COVID-19 vaccine or booster shot.
Request for Leave
An employer must make SPSL available for immediate use upon an employee’s oral or written request. The employee may decide how many hours of SPSL to use. An employer may not require the employee to use any other paid or unpaid time off (including paid time off (PTO) or vacation time) before allowing the employee to use SPSL.
The law requires that the California Division of Labor Standards Enforcement (DLSE) prepare a notice that employers must post in the workplace within ten days of enactment of the new law. The employer should either hand that out or post it in a common area. Check the DLSE’s website on or after February 16, 2022.
How Does 2022 Emergency Paid Sick Leave Interact with Cal/OSHA exclusion pay?
Employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS). This means that an employer can not run concurrently the pay for SPSL and exclusion pay required by the California Division of Occupational Safety and Health’s (Cal/OSHA) Emergency Temporary Standards (ETS). Under the ETS, employers must provide employees with exclusion pay if they test positive for COVID-19 because of work or come into close contact with a positive case during the infectious period at work. Thus, if an employee meets the definition for exclusion pay under Cal/OSHA they will still have on the books the pay available for family members or incidents where they develop COVID-19 away from work.
Handling Retroactive Requests
Employers are likely to be flooded by employee’s who took time off requesting compensation for the time they took off prior the 2022 SPSL going into effect. The best way to manage this is when the new law is effective, provide notice to the employees of the law, and give them a period to request the payment by. This will stop employees from claiming if they are later terminated that they weren’t paid their SPSL pay, and also takes it off the books now. While not all employees may elect this option, it will demonstrate it was given to them and that the employer complied with the law.
Since January 1, 2022, many employers may already know that they had employees who needed time off due to one or more of the COVID-19 reasons listed in 1 to 8 above, and for which the COVID-19 symptoms or illness or a close contact was not contracted at or due to work. Those employers should review their records to determine which employees were unable to work or telework due one or more of the COVID-19 reasons listed in 1 to 8, but not a COVID-19 work-related reason, and determine if such employees’ leave was unpaid or if any of those employees were required to use other paid leave banks, like a Company’s paid sick leave bank. If the employees took unpaid leave for one or more of the COVID-19 related reasons listed in 1 to 8, but not a COVID-19 work-related reason, pay them the COVID-19 supplemental paid sick leave (or replenish their other paid leave bank) and indicate the number of the COVID-19 supplemental paid sick leave hours already used on their paycheck stubs or other writing.
DLSE just released the mandatory Paid Sick Leave poster for all employers of 26 or more, which you can find here.
For questions about sick leave laws or other matters, reach out to our experienced Labor & Employment Department at 408.286.5800 or e-mail firstname.lastname@example.org.