California Issues New FAQs on COVID-19 Paid Sick Leave

By Sebastian Chilco, Michelle Falconer and Adam Fiss © Littler Mendelson March 18, 2022
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California's Labor Commissioner has updated its FAQs concerning 2022 COVID-19 supplemental paid sick leave (CPSL), answering some of employers' more pressing questions about how this year's more unique law operates. The answers are welcome news to many.

Calculating Business Size

The 2022 law applies to employers with 26 or more employees. Employers with few employees working in California, but a larger U.S. footprint, wondered whether the law applies to them.

Though the Labor Commissioner does not provide a specific calculation to use, its response indicates the calculation includes more than just "in California" employees:

The numerical requirement is meant to exempt truly small employers. Although the statute does not specify how employers should count employees, the Labor Commissioner's Office interprets this requirement consistent with how it counts employees for the purpose of minimum wage rates, as detailed in previously issued FAQs on the topic. If an employer has more than one facility, all employees are counted, as well as out-of-state employees; otherwise, a large employer could gain an unfair competitive advantage over similarly sized employer providing 2022 SPSL to its California employees and an unfair advantage over true small employers.

Using a Single Bank Instead of Two Banks

Unlike prior iterations of the CPSL, the law discusses two separate "up to 40-hour" leave banks, with leave hours from one "up to 40-hour" bank available only if the employee tests positive for, or is caring for a family member who tests positive for, COVID-19, and leave hours from the second "up to 40-hour" bank available only for other covered reasons (quarantine or isolation, vaccine appointments or recovery, experiencing COVID symptoms and seeking medical diagnosis, closure of school or place of care for reasons related to COVID-19 on the premises). Given the 2022 law expressly incorporates the "more generous policy" language from the pre-COVID-19 statutory paid sick leave, employers wondered whether they must provide two separate up-to-40-hour banks of CPSL or, alternatively, like in prior years, they could provide a single up-to-80-hour bank of CPSL that employees can use for any reason under the law.

The Labor Commissioner clarified this, explaining, "[a]n employer may, at its discretion, provide one bank of up to 80 hours' leave for any of the qualifying reasons rather than capping the leave at 40 hours unless an employee or family member tests positive."

Absences that Qualify Under Both Banks

Depending on the facts, an absence might qualify as a covered absence under both the "COVID-positive" and "general" banks. Employers had questions about how to handle (and assign hours from one or more CPSL banks to) such absences.

Per the Labor Commissioner: 

An employee may choose which bank they wish to use. Without clear direction from an employee, an employer should assume that an employee, if eligible, is using the "COVID positive" bank if they inform the employer that they or a family member for whom they are providing care tested positive.

Paystubs

Starting on the payday for the next full pay period following Feb. 19, information concerning the amount of CPSL employees used must be provided on paystubs or another written notice employees receive on payday. This information must be displayed separately from pre-COVID statutory paid sick leave. Given the 2022 law's two-bank setup, employers wondered whether they must have two additional lines on a paystub – one for each bank – or whether they could display one additional line (with employee records showing specific information about use under each bank).

Per the Labor Commissioner, "An employer is not required to have separate entries showing the amount used from each bank."

Next Steps

Many will appreciate that the California Labor Commissioner addressed these critical issues soon after the law took effect on Feb. 19. With this new information in hand, some employers might want to discuss whether they should reexamine how they are complying, and will comply, with the law going forward.

Sebastian Chilco and Michelle Falconer are attorneys with Littler Mendelson in San Francisco. Adam Fiss is an attorney with Littler Mendelson in San Jose, Calif. © 2022 Littler Mendelson. All rights reserved. Reposted with permission.

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