One More Time: 2022 COVID-19 Supplemental Paid Sick Leave for California Employees

CPSL will go into effect on February 19, 2022, is retroactive to January 1, 2022, and is effective until September 30, 2022, but if an employee is on CPSL leave at the statute’s expiration, the employee is permitted to take the full amount of leave entitlement. If an employee requests retroactive payment of CPSL, the employer may require the employee provide documentation of a positive COVID-19 test for the relevant period for which the employee requests payment.

Which employers and employees are covered under CPSL?

CPSL only applies to employers who employ more than 25 employees. It applies to all employees who are unable to work or telework for qualifying reasons. CPSL also allows employees to take paid leave to care for “family members,” which is defined as a child (including adopted and foster children), parent, spouse, registered domestic partner, grandparent, grandchild or sibling.

The law has special provisions for firefighters, in-home supportive service providers and waiver personal care service providers.

What are the qualifying reasons for using CPSL?

A covered employee who is unable to work or telework due to any of the following reasons is eligible for CPSL:

• The employee is subject to a quarantine, or an isolation period related to COVID-19, by an order or guidance from the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC) or a local public health office with jurisdiction over the workplace;
• A health care provider has advised the employee to isolate or quarantine due to COVID-19 concerns;
• The employee or the employee’s family member is receiving a dose of the COVID-19 vaccine or booster;
• The employee or the employee’s family member (who is under the employee’s care) is experiencing symptoms related to the COVID-19 vaccine or booster, preventing the employee or the employee’s family member from working or teleworking;
• The employee or employee’s family member (who is under the employee’s care) is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• The employee is caring for a family member who is subject to an order or guidance to quarantine or isolate, or who has been advised to self-isolate or quarantine by a health care provider;
• The 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; or
• The employee or the employee’s family member (who is under the employee’s care) tests positive for COVID-19.

How much paid leave may employees take?

The maximum amount of CPSL a full-time employee is entitled to is 80 hours. But within this 80-hour maximum, an employee is entitled to two separate 40-hour leave banks. The first 40-hour leave bank is available only if the employee tests positive for COVID-19, or a family member under the employee’s care tests positive for COVID-19. The separate second 40-hour leave bank is available for the other qualifying reasons listed above. Part-time employees are entitled to leave based on tenure and average hours worked, where schedule is variable.

The leave taken to receive the COVID-19 vaccine or booster for the employee or a family member may be limited to three days, or 24 hours, unless the employee provides certification from a health care provider that the employee or employee’s family member is continuing to experience symptoms related to the vaccine or booster.

How is CPSL calculated?

For nonexempt employees, the employer has two options for CPSL calculation. First, it may calculate in the same manner as the “regular rate of pay” for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek. Employers must note that the “regular rate of pay” is not merely the stated hourly wage, and care should be taken to ensure the regular rate is calculated correctly. Alternatively, under CPSL’s 90-day lookback option, the employer may divide the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. Note that this option is a slightly different calculation than the lookback option under the PSL, which uses all hours for the lookback computation (under CPSL, all hours should be used for employees who are paid on commissions or other methods that use all hours to determine the regular rate of pay).  Exempt employees are to receive CPSL at the same rate as other forms of paid leave are calculated.

Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for CPSL purposes, but an employee who has maxed out available leave under CPSL is not prevented from utilizing other paid leave that is available to the employee to fully compensate the employee.   

What are an employee’s obligations?

• An employee who wishes to use CPSL must make a written or oral request to the employee’s employer.
• Employees must provide certification from a health care provider when requested by an employer (where CPSL permits the employer to request such documentation).
• Where retroactive payment is requested, it must be paid on or before the payday for the next full pay period after the request and must be reflected on the paystub.

What are the employer’s obligations?

• Employers are required to provide employees with written notice that sets forth the amount of CPSL that the employee is entitled to and has used on the employee’s paystub, or a separate writing provided on the employee’s designated pay date. The wage statement should list “zero hours” under CPSL if the employee has not used any CPSL for that pay period. Note that since employers are required to provide two different banks of 40 hours of leave (as described above), this may require two separate line items on an employee’s paystub.
• By February 26, 2022, the Labor Commissioner is required to make a model notice publicly available for employers. If an employer’s covered employees do not frequent the workplace, then the employer is required to disseminate this notice through electronic means (e.g., via e-mail).

What if an employer already provided an employee with a paid COVID leave benefit in 2022?

If a covered employer already provided a covered employee with a supplemental paid leave benefit for COVID-19 on or after January 1, 2022, but before CPSL takes effect, the employer may count the hours of the other paid leave towards the total number of hours of CPSL that the employer is required to provide.

This offset is permitted if the leave was provided for a qualifying reason under CPSL, and if the employee who received the paid leave was compensated in an amount equal to or greater than the amount of compensation an employee is otherwise entitled to under CPSL. To qualify for this offset, the paid leave provided to the employee must be supplemental, which means it was not already required under a different law (e.g., the Healthy Workplace Healthy Family Act of 2014 (AB1522) or employer policy (e.g., PTO).

What are the key differences between CPSL and the previous SPSL?

• Under CPSL, employees may take paid leave for time spent receiving a COVID-19 vaccine or booster for either the employee or a family member and may take paid leave for the time spent recovering from the vaccine or booster. Specifically, an employee is entitled to CPSL if “the employee is attending a COVID-19 vaccine or vaccine booster appointment for themselves or a family member, or is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster.”
• An employer cannot require that a covered employee first exhaust CPSL before satisfying any requirement to provide the employee with paid sick leave for COVID-19 related reasons under Cal-OSHA (paid isolation leave for workplace exposures).
• If an employee tests positive for COVID-19, the employer may require the employee to submit to another test on or after the fifth day after the first positive test and provide documentation of those results. It is the employer’s responsibility to make such a test available at no cost to the employee.
• Employers are specifically permitted to request requisite documentation in certain circumstances.

Conclusion

At the start of 2022, COVID cases were skyrocketing, testing kits were in short supply and, thankfully, many of the California cases were of the milder Omicron variant. Nevertheless, under California Department of Public Health guidance, while awaiting test results, certain exposures required quarantine (even if the employee was asymptomatic), but requirements varied based on vaccination status. Confirmed cases required isolation, whether or not symptoms were present. As such, many employers had high rates of absenteeism, and can now expect requests from employees for payment of retroactive CPSL benefits for time off already taken.

Employers should immediately post (or disseminate by email) the model CPSL notice, and monitor the Labor Commissioner’s website for future FAQs and guidance regarding CPSL. When requests are made, or qualifying conditions occur, covered employees should provide the leave and ensure that paystubs reflect payment in the specified CPSL tranche.

As with much of the hastily enacted COVID-19 legislation of the past two years, this new employer-paid benefit may be perplexing and provide confusing implementation details. Common sense employer responses may not equate with legal compliance, so employers with questions are encouraged to consult with legal counsel.