COVID-19 Supplemental Paid Sick Leave is Back: Short Compliance Timeframes

On January 25, 2022, Governor Newsom announced that an agreement with the state legislature’s leadership had been reached to revive COVID-19 Supplemental Paid Sick Leave (“SPSL”).  As California employers may recall, SPSL provided a substantial amount of leave (up to 80 hours) relating to a variety of COVID-19-related reasons from April to September 2021.  On February 8, 2022, the bill was passed by the legislature and on February 9, 2022 the Governor signed the bill.

Senate Bill 114 shows a potential framework for the requirements of the potential revived COVID-19 SPSL.  Here are some highlights:

1. Employers of 26 or more employees are subject to the requirements of the law. The law applies to covered employees who are unable to work or telework due to defined reasons related to COVID-19 including circumstances that involve family members.
2. The section is retroactive to January 1, 2022. This means employees may use the leave to cover instances that qualify under SPSL earlier this year.
3. Eligibility amounts depend on whether an employee is “full-time,” is non-full-time, but has regular scheduled hours, or works variable hours. Full-time employees would be entitled to 40 hours.
4. Employees may be entitled to additional SPSL eligibility (up to the same amount as their base). This means that certain employees may have up to 80 hours of leave.  This additional SPSL eligibility is for instances when an employee or employee’s family member tests positive for COVID-19.  If employees fail to provide test results, employers may, under certain conditions, deny the employees additional
5. Unlike the previous SPSL, employers cannot first require that employees diminish their SPSL prior to obtaining “exclusion pay” under the Cal/OSHA Emergency Temporary Standard Regulations.
6. There are a number of compliance dates to be aware of:
   1. Beginning of Leave Eligibility: Employees may begin to take leave for the purposes in the law 10 days after its enactment.  Given that the Governor signed by bill on February 9, 2022, this would mean that the bill would be effective February 19, 2022, and retroactively to January 1, 2022.
   2. Notice Requirements: Employers have to give notice concerning the entitlement to SPSL by placing a poster in the workplace, or if employees do not report to a central worksite, they can do so by electronic notice, such as email.  The Labor Commissioner is tasked with producing a model notice within 7 days of the enactment of the bill (i.e. February 16, 2022).  California’s Department of Industrial Relations has already indicated that an FAQ and workplace postings are forthcoming.
   3. Wage Statements or Separate Notices Regarding Eligibility Amounts: Employers have to list SPSL eligibility on the employees wage statements or separate notices provided to employees each pay period.  Furthermore, the statements should include the amount of SPSL that the employee has used through the pay period in which it was due to be paid on.  This requirement is not enforceable until the next full pay period following the date that the law goes into effect.  (Pay period following February 19, 2022).
7. Regrettably, there are no clear direct tax credits for the payments associated with SPSL at this time. EPSLA under Federal Law expired last year.  Certain small businesses may qualify for more general tax credits under S.B. 113 and should seek advice on these tax benefits from a tax professional.

If you have questions concerning your business’ compliance with these new SPSL requirements or other general labor and employment law questions, please contact the attorneys at Sagaser, Watkins & Wieland, P.C.