COVID Paid Sick Leave

Update 10/6/23 – California Increases the Number of Paid Sick Days Afforded to Employees – Industry CBA Exemption Not Impacted

This week Governor Gavin Newsom signed Senate Bill (SB) 616 into law. SB 616 amends California’s paid sick leave law to expand mandatory paid sick leave from three days to five days.

Construction Industry CBA Carve Out Still Stands: The union construction industry collective bargaining agreement (CBA) carve out that allows employers to avail themselves of having to provide paid sick leave to CBA covered workers was not amended by SB 616. Industry CBAs that continue to meet both of the following are not impacted and their exemptions are still valid:

1. The CBA expressly waives the requirement to provide state mandated paid sick leave in clear and unambiguous terms.
2. The CBA provides for the wages, hours of work, working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate.

If the industry CBA doesn’t meet those requirements then, beginning January 1, 2024, signatory employers to that CBA must provide covered employees five days of paid sick leave.

This content was provided by WPCCA professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.

Update 3/16/2022, Updated COVID Supplemental Paid Sick Leave FAQs Answer Some Big Questions

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 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 February 19, 2022, 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, “[a]n 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 February 19, 2022. 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.

WPCCA continues to pursue a tax credit to offset the costs of the SPSL mandate that is usable by construction employers. To assist in that effort, we have developed a grassroots platform to allow individual contractors to be heard. If you haven’t already, please go to Union Contractor Voice (link below) to alert Governor Newsom and your legislative representatives that you support a dollar-for-dollar tax credit for high wage paying employers to offset the cost of the leave.

This content was provided by WPCCA professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.

Update 2/17/2022, COVID-19 Supplemental Paid Sick Leave (SB 114) – Notice Requirement

As previously reported, Governor Gavin Newsom signed legislation (SB 114) on February 9, 2022, which reinstated COVID-19 Supplemental Paid Sick Leave (SPSL); providing eligible employees up to 80 hours of paid leave for COVID-19-related issues. As the measure was passed using early budget action, there was a 10-day grace period before employers had to comply with the new law on February 19, 2022. The SPSL is retroactive to January 1, 2022 and will remain in effect through September 30, 2022.

In addition to complying with the leave requirements by February 19, 2022, employers must also include certain information on employee paystubs and post notice about the law in the workplace.

PAYSTUBS
Employers must provide employees with written notice that sets forth the amount of SPSL the employee has used through the pay period on either the employee’s itemized wage statement or in a separate writing provided on each pay day. The employer shall list zero hours used if a worker has not used any SPSL.

WORKPLACE POSTING
The law requires the Labor Commissioner’s office to create and make available, no later than February 16th, a workplace posting notice. That posting is now available on the Labor Commissioner’s website.

Employers must post the notice in a conspicuous location at their worksite and provide it to employees working remotely. Under the law, employers are expressly authorized to electronically distribute the poster to their remote workforce using email.

Click here to view the 2022 COVID-19 Supplemental Paid Sick Leave Poster.

Click here to view the 2022 COVID-19 Supplemental Paid Sick Leave Poster (Spanish Version).

Click here to view the 2022 COVID-19 Supplemental Paid Sick Leave FAQs Guide. 

WPCCA continues to pursue a tax credit to offset the costs of the SPSL mandate that is usable by construction employers. To assist in that effort, we have developed a grassroots platform to allow individual contractors to be heard. If you haven’t already, please go to Union Contractor Voice (link below) to alert Governor Newsom and your legislative representatives that you support a dollar-for-dollar tax credit for high wage paying employers to offset the cost of the leave.

This content was provided by WPCCA professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.

Update 2/10/2022, COVID Paid Sick Leave Reinstated

On February 9th, Governor Newsom signed Senate Bill SB 114 which reinstates up to 80 hours of COVID-19 related Supplemental Paid Sick Leave (SPSL) for all employees working for California employers who employ more than 25 people.

The SPSL becomes effective immediately as the statute applies retroactively to January 1, 2022 and ends on September 30, 2022.

Rate of pay under SPSL is the same as normal paid sick leave under Labor Code Section 246 (wages only), with pay caps of $511 per day and $5,110 in aggregate.

Employers must provide employees with written notice that sets forth the amount of SPSL the employee has used through the pay period on either the employee’s itemized wage statement or in a separate writing provided on each pay day. The employer shall list zero hours used if a worker has not used any SPSL.

If an employee is eligible for exclusion pay under the Cal/OSHA Emergency Temporary Standard, the paid leave provided under the Cal/OSHA Emergency Temporary Standard does not count towards SPSL (Cal/OSHA exclusion pay only applies when an employee cannot work due to work-related exposure or illness). In addition, employers cannot require the employee to use any other paid or unpaid leave, paid time off, or vacation time provided before the employee uses SPSL or in lieu of SPSL.

Employers are required to post a notice to be developed by the Labor Commissioner about SPSL. If an employer’s covered employees do not frequent a workplace, the employer may satisfy this requirement by disseminating the notice through electronic means, such as e-mail.

There are two buckets of leave available under the new law, up to 40 hours each. The eligibility requirements for using SPSL in each bucket are as follows:

40 Hour Bucket #1- Qualifying Reasons:

1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, 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 guidelines that provides for the longest such minimum period.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is attending an appointment for themselves or a family member to receive a vaccine for protection against contracting COVID-19. An employers may limit the leave for symptoms for each vaccination or booster to 3 days (24 hours) unless the employee provides verification from a health care provider that the employee (or their family member) is continuing to experience adverse symptoms.
4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The employee is caring for a family member, as defined in subdivision (c) of Section 245.5 of the Labor Code, who is subject to an order or guidelines by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace or who has been advised to self-quarantine by a health care provider.
7. The employee is caring for a child, as defined in subdivision (c) of Section 245.5 of the Labor Code, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

40 Hour Bucket #2 – Qualifying Reason:

• If the employee or a family member for whom they are providing care tests positive for COVID-19. The employer may require documentation of positive test for the employee or family member. No paid leave is required if the employee or family member refuses to test or show documentation.

If you’d like additional insight on the Supplemental Paid Sick Leave Bill, click here. 

We continue to push for a dollar-for-dollar state tax credit to offset the costs of the leave for highroad construction employers who pay premium wages.  We hope to achieve this solution during further budget discussions.

This content was provided by WPCCA professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.

Update 2/8/2022, California Introduces Bill to Reinstate COVID-19 Supplemental Paid Sick Leave

On Wednesday, February 2, The CA Legislature introduced Assembly Bill 84, the newest version of COVID paid leave. The legislature has announced that they plan to move quickly to pass this bill. Once signed by the governor, the bill will go into effect 10 days later. A mirror version, Senate Bill 114, is anticipated to be released in the California Senate.

• As with Supplemental Paid Sick Leave (SPSL) passed in 2021, this new SPSL benefit will apply retroactively to January 1, 2022 and remain in effect until Sept 30, 2022.
• This will apply to all employers with 25 or more employees.
• The new SPSL requirement will go into effect 10 days after it’s signed by Governor Newsom.
• Full-time employees may use up to 40 hours of SPSL for a variety of reasons.
• Full-time employees who test positive for COVID may use an additional 40 hours of SPSL.
• Employers may require documentation showing that the employee tested positive for COVID.
• The new SPSL applies to instances where the employee contracted COVID off of the jobsite and is in addition to any CA paid sick leave requirement or exclusion pay the employee is entitled under the Cal/OSHA ETS.
• The maximum amount of SPSL is $511 per day and $5,110 in the aggregate.
• The available amount of SPSL remaining must be shown on the employee’s paystub or on a separate writing.
• There is no provision allowing a CBA waiver

WPCCA’s statewide legislative team will continue to closely monitor the bill as it passes through the legislature and will provide updates once they become available.

This content was provided by WPCCA professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.

Previous Update – Legislative Leaders Announce Framework to Extend Supplemental Paid Sick Leave Amid COVID Surge

Governor Newsom’s Press Release –

Amid the national surge in COVID-19 cases driven by the Omicron variant, Governor Gavin Newsom, Senate President pro Tempore Toni G. Atkins and Assembly Speaker Anthony Rendon today announced that they have reached an agreement on a framework to ensure employees continue to have access to COVID-19 supplemental paid sick leave through September 30, 2022:

“California’s ability to take early budget action will protect workers and provide real relief to businesses reeling from this latest surge. Throughout this pandemic, we have come together to address the immediate impacts COVID-19 continues to have on millions of California families, both at home and at work. By extending sick leave to frontline workers with COVID and providing support for California businesses, we can help protect the health of our workforce, while also ensuring that businesses and our economy are able to thrive. We will continue to work to address additional needs of small businesses through the budget – they are the backbone of our communities and continue to be impacted by COVID-19.”

Early budget actions will also include restoring business tax credits, including research and development credits and net operating losses, that were limited during the COVID-19 Recession; tax relief for recipients of federal relief grants for restaurants and shuttered venues; and additional funding for the Small Business Covid-19 Relief Grant Program. The framework includes significant funding to bolster testing capacity, accelerate vaccination and booster efforts, support frontline workers, strengthen the health care system, and battle misinformation.

WPCCA Note –

WPCCA’s statewide legislative team continues to be engaged in all impactful legislative proceedings and focused on promoting and protecting our contractors and our industry. The press release from the Governor’s office above, is effectively an extension of SB 95 from last year. While details are limited at this moment, WPCCA’s legal counsel are working to combat the proposed legislation and will provide updates once available.

This content was provided by WPCCA professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.