The California Labor Commissioner has now published the mandatory posters on the 2022 COVID-19 supplemental paid sick leave (CSPSL) law that employers must display in English and Spanish. Additionally, the Labor Commissioner published FAQ’s providing additional guidance regarding the new CSPSL entitlement. The FAQs clarify some new provisions in 2022 that did not exist under the 2021 or 2020 CSPSL laws as well as some nuances of the new regulations. Below is a summary of some of the important clarifications:
CSPSL Must Be Shown on Paystubs
Employers should take care to ensure that they accurately reflect the number of CSPSL used on the employee’s itemized wage statements or other written payday communication. If no hours have been used then the paystub or other writing must indicate “0”. This requirement is different from how regular paid sick leave must be reflected on paystubs, which is the paid sick leave balance. As a reminder, the new CSPSL paystub requirement is different from the previous supplemental sick leave requirement which was listing CSPSL hours available to use while the new required is CSPSL hour used.
Quarantine or Isolation Periods
Employees can use CSPSL 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 an employee meets this requirement, the FAQs state that the California Department of Public Health (“CDPH”) guidance will determine whether and for how long an individual must quarantine or isolate after a CODI-19 exposure. As discussed in our previous Alert, the CDPH isolation and quarantine guidance now controls over the exclusion requirements in the Cal/OSHA Emergency Temporary Standards. The specifics of which employees must be sent home after an exposure and for how long are discussed in our prior Alert as well. However, for purposes of the CSPSL entitlement, employers will not have to provide CSPSL leave for work missed beyond the exclusion period called for by the CDPH guidance. The FAQs stress that since this “guidance may be subject to change it is necessary to determine which isolation and quarantine periods were in effect during any period when leave is or was sought.” The current CDPH guidance has been in effect since the beginning of the year, so employers will not have to look at historical requirements when paying retroactive leave. However, employers should be aware of any future changes to the CDPH guidance which may affect how long employees have to stay home after an exposure to COVID-19.
Positive COVID Test
Under this new entitlement, full and part-time employees are entitled to one allotment of CSPSL hours to use for the covered reasons. Full-time employees receive 40 hours and part-time employees receive hours based on their schedule but usually equal to an average amount of hours worked in one week. Employees may receive an additional amount of leave, equal to the first allotment, if they or a family member they are caring for tests positive for COVID-19. The FAQs say the law does not require employees to take a particular type of COVID test for this purpose. “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.” Employers should note, however, that the Cal/OSHA ETS requires at home employee tests to be observed by the employer, either in person or remotely. So practically, it may be easier for employees to go to a testing site if the employer is not able to easily observe the test. The “observation” requirement will not apply to employees’ family members taking at home tests.
Additionally, employers can require employees to provide documentation of the positive test result. If an employee refuses, the employer can deny CSPSL leave. The FAQs state that “[t]his 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.” The FAQ’s indicate that this is not an exhaustive list so other documentation may be appropriate. However, conservative employers should defer to this list when determining what documentation to accept.
The guidance further indicates that when an employee is out after testing positive 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. The employer is required to provide the test. An employer provides the test when they make it available, meaning ensuring the employee has a rapid test in hand or making a testing appointment for the employee. In either case, the test must be paid for by the employer. If the employee fails to take the required test, the employer may deny CSPSL pay for any leave taken after the time the employer provides the test.
Requests for Retroactive Payments
The FAQ’s indicate that oral or written requests for CSPSL benefits made before February 19, 2022 for leave taken since January 1, 2022 do not need to be honored. Employees must reiterate or renew any such requests after the law became effective on February 19, 2022.
Additionally after an employee has requested to use CSPSL retroactively, the FAQ’s note that if the employer already paid the employee for leave under their sick leave policy or the employer determined that prior leave fell under the California Family Rights Act (“CFRA”), the employer should credit that time back to the employee and award CSPSL benefits for that absence.
For employees seeking retroactive CSPSL benefits for a prior positive test the FAQs confirm that employers may require documentation of the earlier positive test result. Documentation can include medical records, written communications from a provider or testing company, a picture of a test result, or some contemporaneous communication between the employee and the employer regarding the positive test. If the employee does not provide this documentation, then the employer can deny payment of CSPSL hours for the prior absence.
Absences for Vaccination & Recovery Time
When an employee is using Supplemental Sick Leave to cover absences related to a COVID-19 vaccine or booster shot, the leave can be limited 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 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.”
Clarification of Covered Reasons for Leave:
For employees using Supplemental Sick Leave to cover an absence due to closure of a child’s school or place of care, the FAQ’s confirm that the closure or partial closure must be due to COVID-19 on the premises that renders care unavailable. Additionally, employees seeking retroactive benefits for this reason only qualify if the school or daycare closed on or after January 1, 2022. So, if the school or place of care closed prior to January 1, 2022, employees are not entitled to use Supplemental Sick Leave to cover that absence.
Stradling Has Resources To Help You Stay Compliant
To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you want to make sure you are in compliance with the applicable industry guidelines.
