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UPDATE: California Extends COVID-19 Supplemental Paid Sick Leave Through 2022, Makes Small Amendment and Offers Grants for Smaller Employers
On February 16, 2022, the California Labor Commissioner published the mandatory posters concerning the 2022 COVID-19 supplemental paid sick leave (CPSL) law—which will take full effect on Saturday, February 19, 2022—that an employer must display in English and Spanish. Further, and perhaps more important to employers struggling to interpret portions of the law, the Labor Commissioner also published FAQs. The FAQs clarify some new provisions in 20221 that did not exist under the 2021 or 2020 CPSL laws. For many employers, however, the FAQs do not answer some of their more burning questions—at least not yet. The Labor Commissioner could release more FAQs throughout the year, as it did in prior years. Whether that will occur is not yet known.
Until that happens, the FAQs, and the law itself, represent all known details about how the 2022 CPSL law will work. Below we discuss new guidance the FAQs provide, and identify questions we hope the Labor Commissioner will answer in future updates.
What the FAQs Clarify
Quarantine or Isolation Periods: Employees can use CPSL when they are unable to work or telework if they, or a family member they are caring for, are subject to a quarantine or isolation period related to COVID-19 as defined by a federal, state, or local health official’s order or guidance. To determine whether a qualifying period applies, the FAQs direct readers to California Department of Public Health guidance for determining whether and for how long an individual must quarantine or isolate, and to Cal-OSHA’s Emergency Temporary Standards FAQs for workplace-related quarantine or isolation period information. The Labor Commissioner FAQs stress, however, that “guidance may be subject to change[, so] it is necessary to determine which isolation and quarantine periods were in effect during any period when leave is or was sought.” Finally, the Labor Commissioner notes, “[a]t the time these FAQs were prepared, 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.”
Positive COVID Test: Employees can use CPSL when they are unable to work or telework when they, or a family member they are caring for, test positive for COVID-19. The FAQs say the law does not require employees to take a particular type of COVID test. “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.”
Under the 2022 CPSL law, employers can require employees to provide documentation of the test result. If an employee refuses, the employer can deny leave. The FAQs discuss examples of what could satisfy the documentation requirement. “This 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 picture 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.” Notably, this guidance comes not from the general FAQ on documentation, but from an FAQ concerning documentation when an employee requests retroactive pay for such an absence that occurred on or after January 1, 2022 through February 18, 2022. It is unclear whether some of these looser forms of documentation apply to retroactive payment requests only or also represent the Labor Commissioner’s position concerning COVID-19-positive absences that occur on or after February 19, 2022.
For COVID-19-positive absences, an employer can require employees to take another diagnostic test on or after the fifth day following the first test and provide documentation of the results, if the employer makes the test available at no cost to the employee, which, per the FAQs, 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.”
Extended Absences for Vaccines & Recovery Time: Employers can limit time off for obtaining and/or experiencing symptoms of a COVID-19 vaccine or booster shot to three days or 24 hours per shot unless a health care provider verifies the employee or family member continues to experience related symptoms. The FAQs address what verification confirms the need for a longer absence: “Medical certification [verification, in a different FAQ] 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.”
Paystubs: Information concerning CPSL must be available on paystubs or another written notice employees receive on payday, starting on the payday for the next full pay period following February 19, 2022. Employers had questions concerning how much information they had to include because, though the law expressly discusses only CPSL hours an employee used, the law incorporates by reference a similar requirement under California's Healthy Workplaces, Healthy Families Act (HWHFA), the pre-COVID paid sick and safe time law, to display leave available for use. The FAQs clear up this issue: “The 2022 SPSL differs from 2021 SPSL in that the paystub must list what has been used instead of what is available to use.”
What Remains Uncertain or Unclear
Although we know more now than we did when the law was enacted on February 9, 2022, we don’t know everything, and most of what we don’t know directly or indirectly concerns the 2022 law’s “two-bank” setup:
- Leave hours from one “up to 40-hour” bank will be available only if the employee tests positive for, or is caring for a family member who tests positive for, COVID-19.
- Leave hours from the second “up to 40-hour” bank will be available only for other covered reasons (quarantine or isolation, vaccine appointments or recovery, experiencing COVID symptoms and seeking medical diagnosis, closure of school or place of care for reasons related to COVID-19 on the premises).
For example, the FAQs do not address:
- How to handle (and assign hours from one or more CPSL banks to) absences that could involve a covered reason under both banks, either simultaneously, e.g., when an employee must quarantine or isolate after they test positive for COVID-19, or eventually, e.g., when an employee experiences COVID-19 symptoms, seeks a medical diagnosis, and that diagnosis reveals the employee has contracted COVID-19.
- Whether employers must provide two separate up-to-40-hour banks of CPSL that employees can use for specific reasons or whether they can provide a single up-to-80-hour bank of CPSL that employees can use for any reason under the law.2
- Whether a paystub or other writing provided on payday must include two separate lines for CPSL, one for each bank, or whether it can include one separate line displaying how much CPSL overall an employee has used.
We hope the Labor Commissioner addresses these issues soon.
In addition to monitoring the FAQs for updates, employers should review the FAQs and determine what effect, if any, they have on CPSL policies, practices, and procedures. Although many employers have a bit more time to address how employees will receive notice of CPSL used because this obligation does not begin until the payday for the next full pay period following February 19, 2022, many should expect to start receiving requests connected to retroactive payment for, or redesignation of previously used leave to, CPSL. Such requests could require considerable administrative, HR, and payroll staff time and resources, depending on the size of a business’s California workforce. That the start date for 2022 CPSL occurs during a holiday weekend means that, when these employees return on Tuesday, employers might find that their email and voicemail inboxes are just a bit more full than normal.
1 Where there was no change in the law from 2021, the 2022 FAQs’ answers were basically identical, save for changing dates.
2 Notably, the FAQs state: “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” (emphasis added). This may suggest to employers that employees may be limited to using 40 of their 80 hours only for situations involving positive COVID tests. However, it is not clear whether the Labor Commissioner’s use of the “only if” language was definitely intended to limit CPSL use in this way, or whether an employee might be able to ask to use their entire 80 hours for a situation such a child’s day care closure such that the employee could exhaust their entire CPSL amount in that one situation.