Extension of California’s 2022 Covid-19 Supplemental Paid Sick Leave – AB152

AB 152: Extension of California’s 2022 COVID-19 Supplemental Paid Sick Leave through 12/31/22

Written by Lisa vanKrieken – The Law Offices of Folger Levin

California AB 152 was just signed into law by Governor Newsom, extending the requirement that employers provide COVID-19 Supplemental Paid Sick Leave (“SPSL”) to California employees through December 31, 2022. AB 152 does not, however, entitle employees to a new bucket of leave as of October 1st, nor does it change the qualifying reasons for which employees may use SPSL.  AB 152 does have two changes to existing SPSL that are favorable for employers: modifying some testing rules, and also creating a “Small Business and Nonprofit COVID-19 Relief Grant Program” to assist qualified small businesses and nonprofits in their SPSL costs.

As a reminder, current CA SPSL provides for two “buckets” of SPSL leave. The first bucket is 40 hours of COVID-19 SPSL (for full-time employees) to care for themselves or a family member, or obtain a COVID-19 vaccine or booster. (Employees who are not employed full time are entitled to the number of hours that an employee regularly works in one week or an average.) The second bucket provides for an additional 40 hours of SPSL (for full-time employees) if the employee or their family member tests positive for COVID-19.

• Change in Testing Documentation

Current law allows an employer to require an employee who is using the second bucket of leave to provide documentation of a positive test result. Employers also may require employees to submit to a second diagnostic test on or after the fifth day after the first positive test and provide documentation of those results. AB 152 makes the following changes:

• An employer may require a third test within 24 hours of the diagnostic test and require the employee to provide those results.
• An employer may deny SPSL if an employee refuses to submit to the diagnostic tests allowed.

Remember: Should an employer require any or all of these tests, then that must be at no cost to the employee.

• Small Business Relief and Nonprofit COVID-19 Relief Grant Program

AB 152 also establishes the California Small Business and Nonprofit COVID-19 Relief Grant Program which provides grants of up to $50,000 to reimburse eligible small employers with 26 to 49 employees for the cost of providing SPSL. Specifically, the state (GO-Biz) will provide reimbursement for an amount equal to but “no more than the actual costs incurred for” SPSL between January 1, 2022 and December 31, 2022 to qualified small businesses and nonprofit organizations. More information will likely soon be available on a California Grants Portal through ca.gov.

• NOTE:  SPSL Continues to be Separate from Cal/OSHA Exclusion Pay

As with current law under 2022’s SPSL requirements, leave under AB 152 continues to be separate and distinct from Cal/OSHA exclusion pay. Thus, employers may not apply CA SPSL or require employees to use SPSL to satisfy Cal/OSHA exclusion pay requirements. As a reminder, Cal/OSHA requires that employers pay compensation to employees who are excluded from the workplace because they have or were exposed to COVID-19 due to workplace exposure, and the employer has the burden of proof in showing that the COVID-19 exposure was not work-related. Remember that Cal/OSHA exclusion pay is still in effect, at least for the time being.

• San Francisco Public Health Emergency Leave Ordinance

For San Francisco employers, employers who have 100 or more employees worldwide also must provide employees in San Francisco with leave under the City’s new Public Health Emergency Leave Ordinance (“PHELO”) effective October 1, 2022. Attached is a summary of that new SF PHEL Ordinance with further details.

Folger Levin LLP

Lisa M. van Krieken

Direct:     415.625.1081 | Cell: 510.847.9382

Email:      Lvankrieken@folgerlevin.com