Updated FAQs Regarding Supplemental Paid Sick Leave

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Updated FAQs Regarding Supplemental Paid Sick Leave

March 15, 2022

As discussed in our February 15, 2022 briefing, SB 114 Extends COVID-19 Supplemental Paid Sick Leave, California has extended the Supplemental Paid Sick Leave (SPSL) as of February 19, 2022, and will expire on September 30, 2022. Recently, California’s Labor Commissioner updated its FAQs to clarify some of the ways in which the law applies in 2022 as compared to prior iterations. Below we have summarized some of the more important guidance included in the FAQs.

Who is counted as an employee to determine whether an employer has 26 or more employees?

The Labor Commissioner’s office has interpreted the employee determination to count all employees in a business, regardless of where they are situated. If an employer has multiple facilities or out-of-state employees, then all employees of the business will be counted. With this guidance, the Labor Commissioner has made clear that the numerical requirement is meant to exempt truly small employers.

Do you have to exhaust the one week of COVID-19 paid sick leave that can be used for any qualifying reason before using the one week reserved for when an employee or qualifying family member tests positive for COVID-19?

Under the SPSL, an employee elects from which bank they wish to exhaust leave from. There is no requirement for an employee to exhaust one leave before using the other. If there has been no clear election by the employee, the employer should assume that the employee is using the “COVID positive” bank if the employer is informed that the employee themselves, or a family member they are caring for, tests positive. It is at the employer’s discretion whether to “provide employees with one bank of up to 80 hours of leave for any qualifying reason, instead of capping the leave at 40 hours unless an employee or family member test positive.”

Should 2022 COVID-19 [SPSL] be listed separately from regular Paid Sick Leave on the itemized paystub or separate writing at the time wages are paid?

The SPSL is to be paid as an addition to regular paid sick leave, therefore the SPSL information must be listed separately from regular paid sick leave so employees can understand how many separate hours they have used for the 2022 SPSL. Unlike the 2021 SPSL, the paystub must state what has been used, instead of what is still available. The Labor Commissioner further clarified that while there are potentially two banks of benefits under the 2022 SPSL, an employer is not required to have separate entries for each bank.

For further information, employers can view the entire FAQ guidance at 2022 SPSL FAQs (ca.gov).

AP Keenan is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.