2127 - Covid-19 Supplemental Paid Sick Leave 2022

Category

Leave

Audience List

• Employee Relations Officers
• Personnel Officers
• Personnel Transactions Supervisors

Synopsis

This policy

• Provides information on Senate Bill 114 (SB 114) COVID-19 Supplemental Paid Sick Leave 2022.

• Provides information on Assembly Bill 152, extending Supplemental Paid Sick Leave to December 31, 2022.

Introduction

Labor Code section 248.6 (LC 248.6) provides supplemental paid sick leave to all employees for the reasons listed in the section below and expires December 31, 2022.

Statement

COVID-19 SUPPLEMENTAL PAID SICK LEAVE 2022

Per LC 248.6 SPSL is retroactive to January 1, 2022, applies to all employees, including retired annuitants, and is in addition to the employee’s other available leave balances. SPSL as defined in LC 248.6 is separate from other COVID-19 sick leave benefits prior to January 1, 2022. Assembly Bill 152 extended the expiration date of SPSL to December 31, 2022 and does not provide employees with any additional SPSL to use, but merely extends the period during which employees who have not exhausted their SPSL allotments may use such leave.

For purposes of this policy, a family member is defined in California Labor Code, section 245.5, subdivision (c), and includes child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling.

Employees may be eligible to take up to 40 hours (firefighters may be eligible for more) of SPSL if they are unable to work or telework due to any of the following reasons:

1.  The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
   • If the employee is subject to more than one of the above, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidance that provides the longest period; or
2. The employee is advised by a health care provider to isolate or self-quarantine due to a COVID-19 concern or tests positive; or
3. The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework; or
4. The employee is experiencing symptoms or is caring for a family member related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework; or 
   •  For each vaccine or vaccine booster, paid sick leave for this purpose may be limited to three days or 24 hours unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms. The limitation includes any time used under number 3 above to obtain the vaccine.
5. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or
6. The employee is caring for a family member who is subject to an order or guidance under number 1 or who has been advised to isolate or quarantine under number 2; or
7. 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.

The employee’s time base determines the number of SPSL hours the employee is entitled to receive at their regular rate of pay:

•  Full-time employees receive up to 40 hours.
• Part-time employees with a set time base receive a prorated amount based on their time base.
• Intermittent employees with a set weekly schedule will receive the number of hours normally scheduled for the workweek.
• Intermittent employees who work variable hours receive seven times the average number of hours worked each day during the preceding six months, up to 40 hours. The calculations are as follows:
  • To calculate the average number of hours worked by an intermittent employee with a variable schedule over the past six months, the figure is determined based on the total number of calendar days in the 6-month period, not the number of physical days worked.
    • For example: 520 (number of hours the employee worked in the six-month period) /182 days (number of days in a six-month period) = 2.857 average hours per day x 7 days = 20 hours. The employee is entitled to 20 hours of initial SB 114 SPSL.
  •   If the intermittent employee has worked less than six months but more than 7 days, the calculation shall be made over the entire period the covered employee has worked. The figure is determined based on the total number of calendar days in the period the employee worked, not the number of physical days worked.
  •  If the intermittent employee has worked less than 7 days, the employee is entitled to the number of hours worked for that period, but no more than 40 hours.
•  A firefighter who was scheduled to work more than 40 hours in the workweek preceding the sick leave, is entitled to the amount of SPSL equal to the total number of scheduled work hours in that preceding workweek.
  • For example, if a firefighter worked 60 hours in the preceding workweek, they are eligible for 60 hours of SPSL at their regular rate of pay, and is not limited to 40 hours.

Additional SPSL and Obligations

Employees may be eligible to take an additional amount of SPSL not to exceed what the employee was entitled to in the above section, if the covered employee, or family member who the employee is caring for, tests positive for COVID-19.

If the employee tests positive, departments should follow current testing guidelines. Additionally, LC 248.6 allows departments to require employees who have tested positive to submit to a diagnostic test on or after the fifth (5th) day after the initial COVID-19 test was taken and provide documentation of these results. If the diagnostic test is positive, the employer may require a second diagnostic test after 24-hours has passed. Importantly, in such a circumstance, the department shall make tests available at no cost to the employee. If departments choose to require a test on or after the fifth (5th) day, they must provide the employee a home test or secure an appointment for a test on behalf of the employee. Departments are not required to provide SPSL if the department requires test results and the employee refuses to provide the test result. Such tests shall not be done at the worksite. Additionally, testing shall meet the requirements set forth in the Department of Industrial Relations, Division of Occupational Safety and Health, Emergency Temporary Standards (Cal/OSHA ETS).

If the employee requests additional SPSL due to a positive test for a family member for whom they provide care, the department may require that the employee provide documentation of that family member’s test results before providing the additional leave. Employers who require diagnostic test results are not obligated to provide SPSL if the employee refuses to provide the results. The total number of SPSL may not exceed 80 hours. In addition, this policy does not limit an employer’s duties to comply with the Cal/OSHA ETS.

Availability and Retroactivity of SPSL

The effective date of SPSL is January 1, 2022. Per the Department of Industrial Relations (DIR) and LC 248.6, employers shall make this leave available to eligible employees upon the oral or written request of the employee to the employer. In certain circumstances and as outlined in DIR’s frequently asked questions (FAQ’s) employers may require test results prior to providing the leave. A link to the FAQ’s is provided in the Resources section below.

Employees may retroactively use SPSL back to January 1, 2022, upon verbal or written request and the employer shall provide the covered employee with a retroactive payment if the request meets one of the covered reasons. Additionally, departments may require an employee to provide documentation of a positive diagnostic test for the relevant period of retroactive use. Retroactive use also requires an amended timesheet signed by the employee and their supervisor. Retroactive payments shall be paid to the employee on or before the payday for the next full pay period after the oral or written request of the employee.

If an eligible employee is otherwise entitled to receive Industrial Disability Leave (IDL) or Enhanced Industrial Disability Leave (EIDL), the use of SPSL shall not count against the employee’s maximum IDL or EIDL entitlement. An eligible employee may receive SPSL during the waiting period for IDL or EIDL.

Employers shall not discharge, discipline, or otherwise discriminate against any employee based upon the employee’s use of SPSL.

Notice Requirements

The California Labor Commissioner's Office will make a publicly available notice for SPSL. For employees who do not frequent a workplace, the employer can satisfy the notice requirement by distributing the notice through email.

Expiration

The SPSL expires on December 31, 2022, except that a covered employee taking SPSL at the time of expiration shall be permitted to take the full amount without interruption to which the employee otherwise would have been entitled in the section above.

Historical Information

Prior versions of this policy provide detailed information on previous COVID-19 supplemental paid sick leave programs. Prior versions can be found by clicking the View History link at the bottom of the page.

Application

Tracking

Departments utilizing the California Leave Accounting System (CLAS) will follow the State Controller’s Office (SCO) instructions for keying the SPSL sick leave using the ATO usage code. Departments that do not utilize CLAS must ensure their leave accounting system can track this leave usage separately and can provide a leave usage report. If a leave accounting system does not exist, departments must develop a mechanism to manually track and report this leave. The report must include the employee’s name, hours used, and total amount of the paid benefit for the employee.

Timesheet Documentation

Employees must clearly document on their timesheet in the comments section or location as defined by the department that SPSL is being utilized. The documentation on the timesheet should clearly identify the reason leave is being used. For example: if leave is used due to a positive test or the employee is experiencing symptoms from the vaccine, it should be clearly stated in the comments section. In addition, the employee should document the time off as ATO for the applicable days and hours the leave is used.

Intermittent Leave Use

Eligible employees may use SPSL leave intermittently if they are unable to work or telework to care for an employee’s child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 on the premises. Additionally, if an eligible employee who is teleworking away from the normal worksite is unable to work or telework due to any of the qualifying reasons the employee may use SPSL intermittently. For example, SPSL may be used in increments if the employee is teleworking due to exposure and subsequently becomes sick with COVID-19 and can no longer telework.

Additional Information

Departments received an email from the Department of Human Resources, Personnel Services Branch allowing departments to use their ATO delegation and provide employees time off to obtain their COVID-19 vaccines, including any COVID-19 booster vaccine recommendations. This information remains unchanged and departments should still provide ATO for this purpose. ATO for this purpose does not need to be tracked using the mechanism above, and is not counted against the employee's SPSL entitlement. Departments are reminded to keep records of all ATO on file for audit purposes and to substantiate the reasons for any ATO provided to employees for any reason.

Authorities

• Senate Bill No 114
• Assembly Bill 152
• Labor Code section 248.6

Resources

FAQs

• Department of Industrial Relations 2022 SPSL: 2022 SPSL FAQ's

Web Pages

• CalPERS Circular Letters: List of CalPERS Circular Letters
• Definition of Family Member: Labor Code section 245.5

Authorized By

Melissa Russell
Chief
Personnel Management Division

Contact Person

Personnel Services Branch
Personnel Program Consultant , Personnel Services Branch
Phone: 916-909-3702
Fax: 916-327-1886
Email: psb@calhr.ca.gov

Superseded Policies

History

View History