For a more general description of the new law, please see ours previous alarm. Due to the new law enforcement guidelines and related sanctions and potential tax consequences for employees and employers, please contact the authors here or a Nelson Mullins Employment and Labor or Employee Benefits and Compensation Attorney with questions.
On the eve of enforcement, the California Department of Industrial Relations (“DIR”) released Frequently asked questions and poster required for the state’s 2022 COVID-19 Supplementary paid sickness absence (“SPSL”). As a reminder, the new law enters into force on Saturday d. February 19, 2022with retroactive effect back to January 1, 2022. Except for extensions, the law will remain in effect until September 30, 2022. Employers should note the following updates and highlights from the recently released guidance.
DIR’s guidance in FAQ 11 definitively states that February 19, 2022 is the effective date when employers are required to take leave. In other words, there is no further period of deferral beyond the ten days between entry into force and enforcement which now expire. Employers should be prepared to give the above notice and manage leave requests properly despite the weekend enforcement date and the upcoming federal holiday. This temporal circumstance also applies to retroactive payments, which employers may have to process on a shortened timeline, given the law’s requirement that employers pay benefits before the payday in the next regular pay period.
Employers must show the updated poster required in a conspicuous place in the workplace and hand out electronic copies to employees who do not visit a physical workplace.
The law covers employees who are unable to work externally for the qualifying reasons specified in the new law and address in our previous alarm. This is a supplement to the SP21 Program for 2021 or similar federal or local programs delivered in 2020 or 2021. California’s SPSL for 2022 does not apply to independent contractors, but we remind employers of California’s more stringent criteria for independent contractors and to check with lawyer to avoid any misclassification risks.
Clarification of certain qualifying reasons
For employees seeking SPSL pay after absence due to closure of a child’s school or care home, DIR’s guidance confirms that the closure or partial closure must be due to COVID-19 in the premises that make care inaccessible.
Employees seeking retroactive benefits under this ground are only eligible if the school or day care center closed on or after January 1, 2022. The instructions specify that “[t]his does not include the care of a child whose school or day care center was closed before January 1, 2022. “As written, the guidance apparently excludes any overlapping closure during the effective period, although the language is somewhat unclear compared to the intent of the law. Due to the rising Omicron variant in January 2022, employee issues under this scenario are not unlikely, and employers should seek further advice if and where these issues arise.
Insulation order, DPH Guidance, etc.
DIR’s guidelines specify that any order or guidance for an employee to isolate, or an employee’s family member or other household member covered by the law, must be specific to the covered employee. This excludes any general order of residence in the home.
DIR’s guidance notes the changing target items of which isolation or quarantine periods apply to an employee’s special circumstances. Accordingly, it refers to the updated resources provided by California Department of Public Health or other relevant guidance under Cal / OSHA’s recently renewed and updated Emergency Temporary Standards (ETS).
We further note that DIR’s guidance repeats the limited documentation that employers may require of employees seeking pay for leave for this reason, which we address further below.
Employees who qualify for 2022 SPSL, which extends after the expiration of the Act on September 30, 2022, are entitled to terminate the leave they are entitled to receive.
While retroactive 2022 SPSL payments are due on a qualified employee’s next regular payday, the DIR guidance clarifies that payments are otherwise due on the payday for the next regular payday after the employee completes SPSL leave.
In particular, DIR’s guidance reiterates the very limited circumstances in which employers may require employees to provide documentation to verify how and why they meet a qualifying cause under the new law. Simply put, employers cannot refuse employees from taking SPSL immediately after their oral and / or written request or condition, so much so based on some form of medical certification. The guide outlines a fairness standard where employers can otherwise refuse SPSL benefits, ie. the employee says they require leave under an isolation order to be seen later at a crowded party or sporting event, but employers should tread carefully and seek advice where necessary to avoid any retaliation required by law for inappropriate refusal.
Employers may still require some documentation of a positive test result before employees receive paid benefits awarded under SPSL 2022’s 40 (hour) allowance of equal for employees or a family member in their custody who tests positive for COVID-19. It can be in any medium that confirms the positive test result, including a picture of the test itself. Employers can refuse SPSL pay if employees fail to give a positive test result.
Employers may also require a medical certificate stating that an employee requires additional time to recover from side effects, with an employee spending more than three (3) days or twenty-four (24) hours on a single vaccine or booster appointment.
As always, employers should avoid requesting additional medical information and keep separate records of this documentation in accordance with ADA requirements, such as we have previously outlined.
Requests for retroactive payments
General and timing
DIR’s guidance makes an important note that employers are not required to pay SPSL benefits for employees’ oral or written requests for SPSL benefits submitted before February 19, 2022 for leave taken since January 1, 2022. Employees must repeat or renew such requests.
The guide highlights an important example where employees are entitled to seek retroactive payment for time spent on receiving or taking a family member to receive vaccine or booster shots, even if it is for a few hours, and any related improvement, between January 1, 2022 and February 19, 2022. If the employer has previously calculated leave for these employees under California Safety and Sick Leave or other state and federal leave laws such as the California Family Rights Act, the employer must credit that time back and grant supplementary SPSL benefits. Certain exceptions may apply in connection with specific employers’ private leave programs and applicable local laws in force during the retroactive period. In these circumstances, employers should seek further advice to ensure compliance with each law.
Requirements for payroll
Finally, as it concerns employees who receive SPSL benefits retroactively or are otherwise entitled to other leave amounts reversed under the requirements of the new law, employers should ensure that they accurately reflect so much in the employee’s specified payroll or other written pay communication. We remind employers that these notification requirements differ from the previous law, especially where declarations must now indicate SPSL hours used versus available hours. This applies to the scenario just described and otherwise. If an employee has not spent any SPSL time, the payroll statement must indicate so much with a “zero” or similar.
For employees applying for SPSL pay retroactively during the forty (40) hours designated by law for employees testing positive for COVID or related care for covered family members, DIR’s guidance confirms that employers may require documentation of the previously positive test results. Documentation can include medical records, written inquiries from a provider or test company, a picture of a test result or a simultaneous communication between the employee and the employer regarding the same.
Use and calculation of hours
Frequently Asked Questions 18 outlines and maps how employers should calculate holidays for part-time employees. Employers should seek guidance from advisers if there is uncertainty about the amount and eligibility for SPSL pay under this framework.
DIR’s guidance separately confirms that the law does not require coherent use of SPSL leave, either as a timeline or between the assigned “buckets” provided by the new law. Employers can benefit from developing policies that explain so much to ensure that employees know that intermittent SPSL is available, and to otherwise avoid excessive or unnecessary use under the new law.
Back to work test
The law allows employers to require employees to take a COVID-19 test after five (5) days have passed (subject to changes under the CDC and state health authority guidelines) since the employee’s first positive test. Employers should take care of the test themselves or cover the cost of testing. If employees refuse or fail to take the test provided by the employer, the employer may refuse unemployment benefits for any leave taken after the test, provided that the employee actually receives the physical test, or the employer has guaranteed the employee time for a test. plant.
DIR’s guidance creates some confusion here because it prohibits employers from rejecting or specifying certain types of tests required for an employee to take leave after a positive diagnosis (ie over-the-counter versus laboratory tests; PCR versus antigen test). The guidance separately implies that employers have some authority over what tests they may require employees to take before returning to work. In situations where employees reject one test medium but suggest another, employers should lean towards allowing the latter and otherwise seek further advice depending on the specific circumstances.
Interaction with ETS Exclusion Pay
DIR’s guidelines reiterate the statute’s most significant deviation between the SPSL laws from 2021 and 2022, which employers cannot restrict employees from receiving California ETS Exclusion Salary, where applicable, before taking SPSL. As such, employers should prepare managers or other personnel responsible for administering leave to avoid refusing ETS leave if required or requested, notwithstanding the higher compensation to which employees are entitled under this Act.
Copyright © 2022 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XII, Number 52