A belated post about a new law signed February 9, 2022 by Gov. Newsom. I admit to my own COVID/World Events-based fatigue! (Oh, you don’t have any?!?!? Gee, I’m real happy for you! Ha ha.
Confusing date part: The law is set forth in new Labor Code Section 248.6 (“2022 CPSL”). It is retroactive to January 1, 2022. But, an employer’s obligation to provide 2022 COVID-19 supplemental California paid sick leave (CPSL) did not begin until February 19.
And . . . Covered Employers (see below) are to provide 2022 CPSL through September 30, 2022. If an employee is using 2022 CPSL on September 30, however, and the absence would continue without interruption past that date, the employee gets to continue using available CPSL for that absence. Got it?
This law is kind of similar, and mostly not, to the prior CPSL that you navigated last year.
Covered Employers, Employees and Family Members. 2022 CPSL applies to employers with 26 or more employees (and some public entities). It does not apply to employers with 25 or fewer employees.
The law covers all employees. Additionally, it allows employees to use leave to care for family members. Family member is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.
Reasons Employees Can Use Leave. Employees who are unable to work or telework can use 2022 CPSL L for the following reasons – a list you’ll see is expanded from the 2021 reasons:
- Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state or local orders or guidance.
- Employee is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19.
- Employee or family member is attending an appointment to receive a COVID-19 vaccine or booster.
- Employee or family member is experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework.
- Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
- Employee is caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to self-quarantine or isolate by a health care provider due to concerns related to COVID-19.
- Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
- Employee tests positive or is caring for a family member who tests positive for COVID-19.
Interaction with CalOSHA’s ETS and “Exclusion Pay.” If CalOSHA’s COVID-19 requires an employer to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure, employers cannot require an employee to first exhaust CPSL.
Amount of Paid Time Off for Employee. The maximum potential amount of CPSL an employee can receive is 80 hours for full-time employees. But this is really two separate 40-hour rules.
First “Bank of 40-Hours”. If the employee tests positive for or is caring for a family member who tests positive for COVID-19, they draw from one “up to 40-hour” bank of paid time off.
Second “Bank of 40-Hours.” This paid time off is 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 time off under the Second Bank, the time off for a COVID-19 vaccine or booster shot can be limited by the employer to three days or 24 hours. This time includes time spent attending an appointment and/or for COVID-19 vaccine or booster shot-related symptoms (for each vaccine/booster). If a health care provider verifies the individual continues to experience symptoms related to the vaccine/booster, more than three days or 24 hours of time off may be available.
Employee Obligations. The employee (only!) determines how many 2022 CPSL hours they need to use. Employees get to choose whether they will use 2022 CPSL or some other paid or unpaid leave benefit their employer provides, or the law requires, to cover an absence.
Employees can use 2022 CPSL immediately on or after Feb. 19 if they make an verbal or written request to use leave.
Also, please note: when an employee or family member tests positive for COVID-19, employers can require employees to take another diagnostic test on or after the fifth day after the first test and provide documentation of the results. This test must be at no cost to the employee.
Amount of the Benefit. The 2022 CPSL pay rate calculations kind of mirror those required under the “regular” California Paid Sick Leave rules. Generally, employers include total wages, excluding overtime premium pay – as they would under the “regular rule” – but for 2022 CPSL they divide by total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. Under 2022 CPSL, the only reason employers would divide by all hours worked is when the employer pays the employee “by piece rate, commission or other method that uses all hours to determine the regular rate of pay.”
Employers need not pay more than $511 for each day an employee uses CPSL, or more than $5,110 overall. Employees who max out because of the pay caps can use other available paid leave they have so they are fully compensated during the absence.
Notice, Posting and Paystub Requirements. You should post this notice that the Labor Commissioner published.
If you don’t have a “workplace,” you can send this out via email.
Employers must include information concerning 2022 CPSL on paystubs or other written notices employees receive on payday.
However, unlike the 2021 law where employers only had to display CPSL “available,” employers only must report 2022 CPSL hours an employee “used” (reporting “zero hours” until an employee uses CPSL). The law does not clarify if employers must break this information out (for the two banks of available time off) . . . so I suggest you do so!
Offset. The amount of paid leave employees already received in 2022 before the law takes effect might qualify as an offset that satisfies an employer’s 2022 CPSL obligations all or in part. If an employer pays an employee another benefit for time off taken after January 1, 2022 that is for a reason covered by 2022 CPSL, an employer may be able to count those hours toward the amount required by 2022 CPSL.
That is actually a pretty confusing exception/offset because to offset amounts owed under the 2022 CPSL, these amounts be a supplemental benefit. This means employers cannot count paid sick leave employees have used under California’s Healthy Workplaces, Healthy Families Act (HWHFA), the pre-COVID-19 paid-sick-and-safe-time law, or 2021 CPSL toward their 2022 CPSL obligation.
*If you paid any benefits related to COVID after January 1, 2022, there are several complicated provisions of the law, so you should review the actual code section and, if you wish, consult with counsel!