On February 17, 2022, the Labor Commissioner’s Office released an FAQ relating to the requirements of the new COVID-19 Supplemental Paid Sick Leave (“SPSL”). That FAQ is available to be reviewed at the following link:
https://www.dir.ca.gov/dlse/COVID19Resources/2022-SPSL-FAQs.html
Employers should review this guidance from the Labor Commissioner and assume that it reflects the enforcement positions of the DLSE on SPSL. Commencing February 19, 2022, employees may begin using leave, including requesting retroactive leave.
Wage Statement Requirements
There has been some degree of uncertainty about the required wage statement/pay day notice since the bill has been passed. To clarify, the FAQ states the following:
The itemized wage statement or separate writing requirement ensures covered employees understand how many separate hours they have used for 2022 COVID-specific sick leave. The 2022 SPSL differs from 2021 SPSL in that the paystub must list what has been used instead of what is available to use. If no hours have yet been used then the paystub or other writing issued at the time wages are paid must indicate 0.
Therefore, the eligibility amounts do not appear to be required to be listed. Paystubs (or attached notices) should indicate what amounts have been used and should indicate if no eligibility has been used.
Type of Test that is Acceptable for COVID-19 Leave
There is no specific kind of test which employees may use for qualifying leave based on having a positive test:
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.
Employers should be cautious about follow-up testing to end exclusion under the Cal/OSHA ETS Regulations. Under the ETS, if a test is self-administered and self-read (the employee is taking the test and reporting the result) it must be observed by the employer or an authorized telehealth proctor. (See FAQ #2, Cal/OSHA ETS FAQ.)
Certification Requests: Limited to Suspicious Circumstances & Where Permitted
Generally, certification cannot be required and SPSL cannot be denied solely on the basis of a lack of certification from a healthcare provider. However, there are narrow circumstances where the employer can request proof of a positive test or medical verification. For example, in the context of the “additional” leave for a positive test of an employee or the employee’s family member or when an employee wants to use more leave than 3 days or 24 hours for a vaccination appointment and related side effects. The FAQ notes that:
[I]t may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the covered employee is not requesting [SPSL] for a valid purpose. In any such claim, the reasonableness of the parties’ actions will inform the outcome of the claim.
For example, if a covered employee informs an employer that the covered employee is subject to a local quarantine order or recommendation, has to stay home, and qualifies for [SPSL], but the employer subsequently learns that the covered employee was out at a ballpark, the employer could reasonably request documentation.
With respect to additional leave, the law also provides that employers can require employees to test after 5 days have passed since the employee tested positive for COVID-19, provided the employer makes it available at no cost.
If you have questions concerning your business’ compliance with COVID-19 regulations and requirements, please contact the attorneys at Sagaser, Watkins & Wieland, P.C.