California Poised To Extend COVID-19 Supplemental Paid Sick Leave Requirements

September 20, 2022

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Source: Lexology, by Samantha Saltzman and Stephen Taeusch

With current COVID-19 Supplemental Paid Sick Leave (SPSL) requirements set to expire on September 30, the California Legislature has passed California Assembly Bill 152 (AB 152), which now awaits Governor Gavin Newsom’s signature.

If signed, AB 152 will extend the COVID-19 SPSL requirements through December 31, 2022 – three months beyond the current expiration date. The bill would not increase the amount of leave employees may take, but it would give employees an additional three months to use any SPSL for which they may be eligible. The Governor has until September 30, 2022 to sign or veto the bill. If the bill is not enacted, SPSL will expire as currently scheduled.

AB 152 additionally provides an employer-favorable change related to COVID-19 testing. SPSL provides two banks of leave of up to 40 hours each, the second of which is available only if an employee or a family member for whom the employee is providing care has tested positive for COVID-19. For a summary of existing SPSL requirements, please see our prior alert here.

Under existing SPSL requirements, employers may require employees wishing to use leave from this second leave bank to provide documentation of a COVID-19 viral test result. Employers may also require an employee using such leave to submit to a diagnostic test on or after the fifth day after their original positive test and provide documentation of those results.

AB 152 would supplement existing requirements to provide that employers may require employees to submit to another diagnostic test within no less than 24 hours if the second test is positive. Employers are not required to provide additional SPSL to an employee who tests positive and refuses either to submit to both required diagnostic tests or provide documentation of the results. Employers requiring testing must continue to cover the costs of the tests.

Finally, AB 152 will establish the California Small Business and Nonprofit COVID-19 SPSL Relief Grant Program to assist qualified small business and nonprofits incurring costs for SPSL, until its repeal on January 1, 2024. Under this program, the Governor’s Office of Business and Economic Development, or GO-Biz, will provide grants to reimburse qualified small businesses or nonprofits for actual costs incurred for SPSL provided in 2022, up to a maximum of $50,000.

To qualify for this relief, the business or nonprofit must meet all of the following criteria:

  1. 1. Is a C or S corporation, cooperative, LLC, partnership, limited partnership or registered 501(c)(3), 501(c)(6) or 501(c)(19)
  2. 2. Began operating before June 1, 2021
  3. 3. Is currently active and operating
  4. 4. Has 26 to 49 employees and has provided payroll data and an affidavit attesting to that fact
  5. 5. Has provided SPSL pursuant to the requirements of California Labor Code sections 248.6 and 248.7 and
  6. 6. Provides organizing documents, including but not limited to a 2020 or 2021 tax return or Form 990 and a copy of official filing with the Secretary of State or with the local municipality as applicable.

There are approximately 11 exemptions that exclude certain small businesses and nonprofits from eligibility for such relief, even if they meet the above requirements. Small business and nonprofits considering seeking relief under the COVID-19 SPSL Relief Grant Program should therefore consult with legal counsel for guidance regarding eligibility.

Next steps

Although AB 152 still awaits the Governor’s signature, covered California employers should anticipate the need to keep current SPSL benefits in place until the end of the year. If the bill is signed into law, it will immediately go into effect. With this in mind, employers are encouraged to update any related policies and keep in mind any similar local paid sick leave requirements that may be able to run concurrently with SPSL.

 

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