California 2022 COVID-19 Paid Sick Leave Information and Processing Instructions (CPSL)

On Feb. 9, California’s governor signed SB 114, which creates new Labor Code Section 248.6. The law took effect immediately and is retroactive to Jan. 1, 2022.

It requires California employers to provide paid time out for certain reasons related to COVID. There is no direct tax or financial relief to employers for providing 2022 CPSL. Rather, it is a cost to employers over and above other paid time out.

The law applies to employers with 26 or more employees and to a number of public entities and covers all employees regardless of the number of hours they work.

AdvanStaff’s Support to Impacted California Clients

  • AdvanStaff has created two forms for you to use when any of your California employees presents one of the reasons listed below and is therefore likely eligible for California Supplemental Paid Sick Leave.
  • Both forms must be completed and immediately sent to your AdvanStaff HR Specialist. 
  • After forms are completed and sent to your HR Specialist, you will need to submit any applicable / payable hours for CPSL through payroll processing for the payroll on which payment must be made.
  • AdvanStaff has set up specific codes for you to select in order to provide the appropriate information on payroll check stubs. Your AdvanStaff Payroll Specialist will work with  you to determine what code(s) apply.
  • Although AdvanStaff is providing this administrative support, the law has not been fully developed and not all provisions are completely clear.

About the law California 2022 COVID-19 Paid Sick Leave Law

The law applies to employers with 26 or more employees and to a number of public entities and covers all employees regardless of the number of hours they work. The 2022 law does not apply to employers with 25 or fewer employees and responsibility to comply began on February 19, 2022.

In addition to requiring a business to pay for time out for the employee’s COVID related situation, It allows employees to use leave to care for family members. Family member is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.

Employees who are unable to work or telework can use the CPSL for the following reasons:

  • Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state or local orders or guidance.
  • Employee is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19.
  • Employee or family member is attending an appointment to receive a COVID-19 vaccine or booster.
  • Employee or family member is experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework.
  • Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
  • Employee is caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to self-quarantine or isolate by a health care provider due to concerns related to COVID-19.
  • Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  • Employee tests positive or is caring for a family member who tests positive for COVID-19.

The requirement to provide CPSL remains in effect through Sept. 30, 2022. If an employee is using CPSL on Sept. 30, 2022, however, and the absence would continue without interruption past Sept. 30, the employee gets to continue using available CPSL for that absence.

When an employee is excluded from the workplace due to COVID-19 exposure, employers cannot require an employee to first exhaust CPSL.

The maximum potential amount of CPSL an employee can receive is 80 hours for full-time employees (a proportionate amount for other employees). The law requires the employer to set up and administer two separate “up to 40-hour” leave banks.

  • Leave hours from one “up to 40-hour” bank will be available only if the employee tests positive for or is caring for a family member who tests positive for COVID-19.
  • Leave hours from the second “up to 40-hour” bank will be 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).

Regarding the second bank, time off for a COVID-19 vaccine or booster shot can be limited by the employer to three days or 24 hours. This time includes time spent attending an appointment and/or for COVID-19 vaccine or booster shot-related symptoms (for each vaccine/booster).  If a health care provider verifies the individual continues to experience symptoms related to the vaccine/booster, more than three days or 24 hours of time off may be available. Because of this “continuing symptoms” exception and the ability of an employee to use leave per vaccine and to care for or assist a family member, it is possible that an employee could use the entire second bank of leave for obtaining and/or recovering from a COVID-19 vaccine/booster purposes.

There will be questions about how, and in what amount, employers should categorize absences that wholly or partially qualify as both “first” and “second” bank absences. For example, how should leave be allocated when an individual must quarantine or isolate after testing positive for COVID-19 or an employee tests positive for COVID-19 after experiencing symptoms and seeking a medical diagnosis? The law does not currently  address this issue, so employers will need to look to the California Labor Commissioner for guidance.

Concerning how to calculate the amount of leave employees receive:

  • Full-time employees. Employees receive 40 hours (for each bank of leave) if either their employer considers them to work full time or, on average, they worked or were scheduled to work at least 40 hours per week in the two weeks preceding the date they took leave.
  • Non-full-time employees: Employees with a normal weekly schedule receive the total number of hours they are normally scheduled to work over one week (for each bank of leave). Employees who work a variable number of hours and whose tenure is six months or more receive seven times the average number of hours they worked each day in the six months preceding their leave date (for each leave bank). If they have worked only between eight days and six months, employers are to use this same calculation but over the employee’s entire period of employment. Employees who have worked seven days or fewer receive leave hours equal to their total number of hours worked (again, for each leave bank).

Employees alone determine how many CPSL hours they need to use. Employees get to choose whether they will use CPSL or some other paid or unpaid leave benefit their employer provides, or the law requires, to cover an absence.

Employees can use 2022 CPSL immediately on or after Feb. 19 if they make an oral or written request to use leave. The 2022 CPSL law does not generally contain language allowing employers to ask employees to provide verification or documentation to substantiate their need for leave. Employees can use more than three days or 24 hours of 2022 CPSL to recover from the vaccine or booster if a health care provider verifies the person has continuing symptoms from a vaccine or booster. Additionally, employers can require employees to provide documentation of the test result when leave is used for situations where the employee or family member tests positive for COVID-19. If an employee refuses to provide documentation, the employer can deny leave.

When an employee or family member tests positive for COVID-19, employers can require employees to take another diagnostic test on or after the fifth day after the first test and provide documentation of the results. Importantly, in such a circumstance, an employer must make the test available at no cost to the employee.

Generally, employers include total wages, excluding overtime premium pay and divide by total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. Employers would divide by all hours worked when the employer pays the employee “by piece rate, commission or other method that uses all hours to determine the regular rate of pay.”

Whether “exempt” or otherwise, employers need not pay more than $511 for each day an employee uses CPSL, or more than $5,110 overall. Employees who max out because of the pay caps can use other available paid leave they have (“top up”) so they are fully compensated during the absence.

The state labor department has made a model poster available which employers must conspicuously display in their workplaces. If employees do not frequent a workplace, employers can distribute the poster electronically, e.g., by email.

California requires information concerning CPSL be available on paystubs or other written notices employees receive on payday.

Employers only must report 2022 CPSL hours an employee “used” (reporting “zero hours” until an employee uses CPSL). Given the two-bank setup, employers should include two separate lines (one for each bank) or a single line (representing aggregate leave used from both banks.