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February 2022

Labor Commissioner Publishes Frequently Asked Questions for 2022 COVID-19 Supplemental Paid Sick Leave

The California Labor Commissioner has issued FAQs for 2022 Supplemental Paid Sick Leave (SPSL), which can be found here

A few highlights:

  • Confirms that employers can only require documentation from employees when (1) leave is sought for the employee or family member’s positive result; (2) an employee requests more than 24 hours of vaccine related leave due to recovery from side effects; and (3) when seeking retroactive payment (1/1 to 2/19) for leave for positive results.  Employers can request documentation in support of the other reasons for leave under qualifying reasons other than for a positive result (the second “bucket” of hours) only if the employer has objective evidence that the employee is seeking leave for an improper purpose. (Nos. 19, 20)
  • Confirms that no particular type of test is required as evidence of a positive result.  Thus, employers can decide what type of test they wish to accept as proof. (No. 21)
  • Confirms that if an employee is taking leave for positive results, and the employer requires the employee take a confirmatory test after day 5, that the employer make the test available at no cost: “Making a test available means ensuring the employee has a rapid test in hand or securing an appointment at a testing facility for the employee.  A test has not been made available by the employer if it has not been received by the employee.” (No. 22)
  • Confirms that the limit of 24 hours for vaccine related leave applies to each dose or booster.  If an employee took 24 hours for their own booster and side effects, and then needed time off to take their child for a second dose and related side effects, only 16 hours would be remaining to use absent a medical note providing for a longer time. (No. 24)
  • Confirms that employers can reduce available SPSL hours by any COVID related sick leave hours paid to employees between 1/1/22 and 2/19/22 provided the leave was given for the same reasons and at the same rate of pay as SPSL.  Thus, if the employer had its own policy to pay employees out for qualifying reasons or was paying employees COVID sick leave as required by a local ordinance, these hours will be credited against the total hours available to the employee going forward.  Also, employees who used another type of leave – like PTO or California Paid Sick Leave – can request those hours be returned to their bank and have SPSL apply instead. (Nos. 26-29)

By now, employers should have provided all employees with the SPSL Poster, either by posting at the workplace where visible or distributed electronically to those employees who do not frequent the workplace.  It is available in English here and Spanish here

Also, by the next pay period after February 19, 2022, employers must indicate on the employee’s paystub or a separate writing the amount of hours of SPSL used.  For many employees, this amount will show as zero, unless the employer has provided retroactive SPSL by that pay period.

Please reach out to your trusted Gordon Rees Scully Mansukhani attorney with questions.

Employment Law

Talia L. Delanoy

Employment Law