California’s 2022 COVID-19 Supplemental Paid Sick Leave becomes effective tomorrow, February 19, 2022 (for background and basics about the new law, see our prior post here). This week, the Labor Commissioner published additional resources just before the law becomes effective. Below is a summary of the notice requirements (and with a link to the required poster) and a review of the critical issues addressed in the Labor Commissioner’s FAQs published this week to aid employers in meeting their obligations under the new law starting on February 19:
1. The required poster for employers is available on the Labor Commissioner’s website.
The only required notice employers must provide to employees about the new SPSL is through posting a poster developed by the Labor Commissioner. The poster was published this week and can be found here. (The Spanish version is here).
Employers who have employee that do not “frequent a workplace,” can satisfy the posting requirement by sending the notice to employees electronically.
2. The Labor Commissioner’s FAQs provide how employees can make requests for retroactive SPSL payments for leave between January 1, 2022 and February 19, 2022.
Employees who have taken leave from January 1, 2022 through February 19, 2022, for one of the reasons covered under the SPSL, the employee may ask for payment for this leave on or after February 19, 2022. The Labor Commissioner’s FAQ #13 explains:
For example, if a covered employee had to take two hours off for a vaccine appointment on January 15, 2022, the employee can make an oral or written request to the employer to be paid for that time off in January, because it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave. The oral or written request must be made on or after February 19, 2022. A request made before February 19 does not count. If an employee is unable to make the request themselves or has difficulty locating an employer to provide proper notice, they may contact the Labor Commissioner’s Office, which may be able to provide assistance.
After the employee makes the request, the employer will have until the payday for the next full pay period to pay the “retroactive” 2022 COVID-19 Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2022 COVID-19 Supplemental Paid Sick leave hours have been used by the covered employee.
3. The FAQs explain what type of documentation employers may require from employees.
There are a limited number of occasions for when employers can condition the payment of SPSL only if employees provide certain documentation. FAQ # 19 makes it clear that generally employees do not need to provide documentation to the employer in order to take SPSL. However, that FAQ explains if the employer learns that the “employee is not requesting 2022 COVID-19 Supplemental Paid Sick Leave for a valid purpose” the employer could reasonably request documentation (but this is a very limited exception that employers must approach with caution).
The FAQs set forth the following the additional circumstances of when an employer may condition payment of SPSL upon documentation from the employees:
- Employers may ask employees for documentation before paying retroactive payment for SPSL related an employee’s positive COVID test or the employee’s family member’s positive COVID test.
FAQ #14 explains:
… if the employee is requesting retroactive pay for leave that is available only if the employee or qualifying family member was positive for COVID-19, an employer may request documentation. 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.
- Employers may ask for documentation before paying SPSL that is only available after a positive test. See FAQ # 20.
- Employers may ask for documentation when an employee uses more than three days or 24 hours for a single vaccine appointment and recovery from any related side effects. Here, an acceptable request by the employer would be a note from a health care provider that the employee or family member continued to have vaccine side effects. See FAQ #20.
Other than these limited exceptions, employers may not condition the payment of SPSL upon employee providing documentation supporting their request for SPSL.
4. What COVID-19 tests are acceptable under the SPSL?
FAQ #21 provides that “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.”
5. Employers may count paid sick leave provided under local paid sick leave ordinances towards the 2022 SPSL requirement.
The FAQs permit employers to count leave provided under local ordinances towards the SPSL requirement under certain circumstances. FAQ # 27 explains:
For example, if an employer provides a full-time covered employee 40 hours of COVID‑19-related supplemental paid sick leave pursuant to a local ordinance, those 40 hours would count toward the employer’s obligations under the 2022 COVID-19 Supplemental Paid Sick Leave law, so long as the leave provided is for a reason listed under the 2022 COVID-19 Supplemental Paid Sick Leave law and is at least at the same rate of pay as this law requires.
As the new law takes effect on February 19, 2022, it is likely that the Labor Commissioner will update the FAQs with further clarifications as employers begin to implement the requirements and additional questions arise. Employers should review the full FAQs available here, and regularly check for any updates to the FAQs.