On September 29, 2022, Governor Newsom signed AB 152 into law, extending California’s Supplemental Paid Sick Leave (“SPSL”) law through December 31, 2022 (the law was previously set to expire on September 30, 2022). The law requires employers with 26 or more employees to provide up to 80 hours of COVID-19 related paid sick leave. Here are five key issues California employers should know about the new law and some reminders about obligations under California’s Supplemental Paid Sick Leave:
1. AB 152 extends employers’ obligation to provide SPSL until December 31, 2022.
AB 152 extends SPSL until December 31, 2022 (the prior law was set to expire on September 30, 2022). The paid sick leave requirement expires on September 30, 2022 (but employees currently using the sick leave can continue its use past the September 30th deadline).
The prior law, and AB 152 applies to employers with more than 25 employees.
2. The new law establishes a grant program to assist qualifying businesses with costs of providing SPSL.
AB 152 establishes a grant program to assist qualified small businesses and nonprofits that have incurred costs in providing SPSL to employees. The grants are to reimburse employers for SPSL provided between January 1, 2022 and December 31, 2022. The grants are capped at $50,000 and are available for employers who are:
- a “C” corporation, “S” corporation, cooperative, limited liability company, partnership, or limited partnership, registered 501(c)(3), 501(c)(6), or 501(c)(19);
- began operating before June 1, 2021;
- is currently active and operating;
- has 26 to 49 employees and will declare under penalty of perjury of this fact;
- has provided SPSL pursuant to Labor Code section 248.6 and 248.7;
- provides organizing documents (such as Articles of Incorporation, Certificate of Organization, etc…) and tax returns in 2020 or 2021.
3. Which employees are entitled to paid sick leave?
AB 152 does not change the qualifying reasons for SPSL. As a reminder, 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: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)
The new law does provide that employers may require employees to submit to a diagnostic test on or after the fifth day after they initially tested positive and require the employee provide documentation of this test. If the second test was positive, the employer may require the employee to submit to a third diagnostic test within no less than 24 hours. The employer must pay for these tests.
4. How much paid leave is required?
AB 152 does not change the amount that employees are entitled to receive in SPSL. The employee is eligible for potentially up to 80 hours of leave available under two different banks:
- Bank #1: Employees are entitled up to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.
- Bank #2: Employees are entitled up to 40 hours of paid leave for reason number 8 listed above (if they or a family member test positive).
Employers should have internal tracking measures in place to track the reason for the leave and how much of the leave the employee has taken under each of the two banks of leave available.
Calculating Amount of Leave Available
There is also no change in how employers are to calculate the amount of leave. The calculation varies for employers based on the amount of work employees perform, such as part-time, variable scheduled employees, and full-time employees. Employers will need to review the requirements in order to make the appropriate calculations for these different classes of employees.
Calculating Rate of Pay
The law sets forth how employers are to calculate the rate of pay for nonexempt employees, and exempt employees. Employers need to carefully review these calculations to ensure the proper rate of pay is being used when an employee takes qualifying paid leave.
Caps on Payments
The prior law placed a total cap on SPLS at 80 hours for the period between January 1, 2022 to September 30, 2022. This cap is still in place, even though employers must continue to provide SPSL until December 31, 2022. Therefore, if an employee has already used all of their eligible SPSL, the new law does not require employers to provide any additional leave.
Interaction with California’s Healthy Workplaces, Healthy Families Act and Cal/OSHA ETS Exclusion Pay, and Local Ordinances
As a reminder, the supplemental paid sick leave is in addition to the paid sick leave employees are entitled to under California’s Healthy Workplaces, Healthy Families Act set forth in Labor Code 246. Moreover, 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). The California supplemental paid sick leave leaves in place any employer obligation to comply with local paid sick leave requirements, such as those in Los Angeles City and County, Long Beach, and Oakland.
5. New updated posters published by the Labor Commission, and reminder about pay stub requirements.
The Labor Commissioner has updated the posters employers are required to post in the workplace. The updated posters are available here:
The poster is required to be displayed in a place at the worksite where employees can easily read it. If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.
The law requires employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid. This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day. The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave. This requirement has been in place since the full pay period following February 19, 2022 and will continue until December 31, 2022.
Other provisions of the law also address firefighters and providers of in-home supportive services employees.