Regulatory and Industry News Alerts from Armanino
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California Reimplements COVID-19 Supplemental Paid Sick Leave for 2022

by Jenn McCabe, Shannon Oswald
February 25, 2022

California has reimplemented Supplemental Paid Sick Leave (SPSL) for COVID-19 related illness in 2022 for covered employers (employers with 25+ employees). The current legislation is retroactive to January 1, 2022, and is set to expire on September 30, 2022. Employers are required to begin fully implementing the SPSL guidelines as of February 19, 2022.

In light of the differences between the 2021 and 2022 SPSL, here’s what HR professionals need to know:

Request for Leave: Employees can request the use of SPSL verbally or in writing. Employers cannot require the use of other PTO (vacation, sick days, etc.) prior to the use of SPSL. Note that employees can choose whether they use SPSL time or another form of paid/unpaid time.

Amount of Hours:

  • Total of 80 hours
  • 40 hours of “flex” time and 40 hours for a COVID-19 positive test

“Flex” hours (40 hours) can be used if the employee has symptoms, is caring for a relative who tests positive, is subject to quarantine/isolation orders, is caring for a child whose school or place of care is closed due to COVID-19, or is undergoing vaccine appointments/recovery (for themselves or a family member). Note: Vaccine/booster appointment/recovery can be limited to three days (24 hours) by the employer (the employee may use more hours if they have healthcare provider verification).

The second set of 40 hours is to be used if an employee or a family member is sick with a confirmed case of COVID-19. The employer can require proof of the positive test (for the employee or family member); if it’s not provided, the leave can be denied.

Definition of Family Member: “Family member” means a child, including a biological, adopted or foster child or stepchild; a biological, adoptive or foster parent, stepparent or legal guardian of an employee; the employee’s spouse or registered domestic partner; or a grandparent, grandchild or sibling.

Part-Time Employees: Hours for each week would be equivalent to the number of hours they are normally scheduled.

Calculation of PT Hours: Anyone who works variable hours and has worked for at least six months would be entitled to seven times the average hours they worked each day in the six months preceding their leave date.

  • If the employee has worked for 15 days to six months, the above calculation is used.
  • If the employee is employed less than 14 days, the allotment is equal to their total hours worked.

Required Testing: Employers must provide and pay for COVID-19 testing if another diagnostic test is requested on or after the fifth day of the initial positive test.

Rate of Pay: Exempt employees are entitled to up to $511 each day, $5,110 overall. Employees can “top up” and use other paid time off options to ensure they are paid for the full workday if $511 doesn’t cover their daily rate.

For non-exempt employees, there are two options:

  • Calculate in the same manner as the regular rate of pay for the workweek in which the employee uses SPSL. Note: If an employee works with two or more rates the Regular Rate of pay calculation can be used, however, you can also use the Rate in Effect method. Recommendation: Use the method that is most financially beneficial to the employee.
  • Calculate by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay periods of the prior 90 days worked.

Notice Requirements

Employers are required to inform employees of the 2022 SPSL entitlements in writing. There will also be a notice from the Labor Commissioner that will be included in employers’ required postings.

In addition, employers are required to display hours “used” (showing “zero hours” until the employee uses the time) on the employee pay stub. Note: This is different from the “hours available” that was required to be displayed on pay stubs with the 2021 SPSL.

In closing, it’s important to note that Cal/OSHA’s exclusion pay is still required and is separate from the 2022 SPSL entitlements. Employers should ensure compliance with notification, posting and implementation of the 2022 SPSL guidelines by creating a policy or process for internal notification in addition to current COVID-19 prevention plans.

For assistance, contact our experts.

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Authors
Jenn McCabe - Partner, Outsource HR - El Segundo CA | Armanino
Partner
Shannon Oswald - Director, Consulting | Armanino
Director
Resources
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