If you employ 26 or more employees, we recommend that you notify any California employees how you will handle retroactive requests for 2022 COVID-19 Supplemental Paid Sick Leave (SPSL). As we reported in a recent Alert, the 2022 COVID-19 SPSL law (SB 114) takes effect on February 19, 2022, but is retroactive to January 1, 2022. Technically, the law requires covered employers to apply SPSL retroactively only if requested by an employee. However, we believe sitting back and waiting for employees to make a request could raise both employee relations issues (perceptions of unfair treatment) and legal issues (if employees identify differences in protected statuses between those who receive SPSL and those who don’t, when their reasons for taking time off were the same). Here are the steps we recommend:
Inform employees of your new policy and how to request retroactive leave: For example: “Enclosed is our policy with information about a new type of leave that’s available to you retroactively from January 1, 2022, through September 30, 2022. The leave is called 2022 California Supplemental Paid Sick Leave (SPSL), and it provides up to 40 hours of paid leave for time off related to COVID-19 (coronavirus) as described in our policy, plus up to an additional 40 hours if you or a family member you’re caring for test positive for COVID-19. You have the right to ask for your prior time off to be retroactively covered by this new law. If you took time off on or after January 1, 2022, for a reason that was covered by this new law, please contact HR as soon as possible, so we can determine the appropriate way to designate and pay for the SPSL. For example, this may include restoring the balance of any [PTO/vacation/sick leave] that you used.”
Display the 2022 SPSL poster: Download the mandatory poster in English or Spanish. Display the poster with other employment posters in your workplace, in an area where employees gather. For employees who don’t normally enter the workplace, you may provide the poster electronically, such as through email.
Capture SPSL usage on pay stubs: Starting with the next full pay period that occurs after February 19, 2022, you must include the amount of 2022 SPSL used through that pay period on the itemized wage statement or on a separate written notice. If the employee hasn’t used any SPSL, you should report the amount as zero.
Tips: Check with your payroll provider to see whether they’ll be able to include the 2022 SPSL usage figures on employees’ pay stubs. If not, you’ll need to come up with your own system of providing written notice with employees’ paychecks.
Even though the law appears to allow you to simply report the total number of SPSL hours used so far, you should ensure that you have a way to internally track each leave entitlement. Specifically, you’ll need to track the number of hours used for each of the two 40-hour buckets of leave (one for the reasons listed in the policy and one for when the employee or family member tests positive for COVID-19). You’ll also need to track the number of hours spent getting vaccinated and recovering from symptoms related to the vaccine. Although that vaccine-related leave is covered under the general 40-hour bucket of leave, it’s subject to a cap of 3 days or 24 hours unless the employee provides verification from a healthcare provider of continued symptoms related to the vaccine or booster.
For more information, see the Labor Commissioner’s COVID-19 Guidance and Resources web page, which should soon contain newly revised FAQs. Questions? Contact your Vigilant Law Group employment attorney.