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California Commissioner of Labor Releases 2022 COVID-19 Supplemental Paid Sick Leave Posters and FAQs, But Many Questions Remain | Smaller

On February 16, 2022, the California Labor Commissioner released the mandatory posters regarding the CPSL Act 2022 COVID-19— which will take full effect on Saturday, February 19, 2022 — that an employer must post in English and Spanish. In addition, and perhaps more importantly for employers struggling to interpret parts of the law, the labor commissioner has also issued FAQs. FAQs clarify some new provisions in 20221 that didn’t exist under the 2021 or 2020 CPSL laws. For many employers, however, the FAQ doesn’t answer some of their most burning questions, at least not yet. The labor commissioner could publish more FAQs throughout the year, as it has done in previous years. It is not yet known if this will happen.

Until that happens, the FAQ and the law itself all represent known details on how the CPSL 2022 Act works. Below, we discuss the new guidance provided by the FAQs and identify questions that we hope the Commissioner of Labor will answer in future updates.

What the FAQ clarifies

Periods of quarantine or isolation: Employees may use CPSL when they are unable to work or telecommute if they, or a family member they are caring for, is subject to a period of quarantine or isolation related to COVID-19 such as defined by a federal, state or local health official. order or advice. To determine whether a reference period applies, the FAQ invites readers to California Department of Public Health guidance on determining whether and for how long someone should be quarantined or isolated, and on Cal-OSHA Temporary Emergency Standards FAQs for workplace-related quarantine or isolation period information. The Labor Commissioner’s FAQs, however, point out that “the guidelines may be subject to change[, so] it is necessary to determine what periods of isolation and quarantine were in effect during any period the leave is or was requested. Finally, the labor commissioner notes:[a]At the time this FAQ was prepared, generally all symptomatic individuals should self-isolate after being exposed to COVID-19. If a covered employee has been exposed but has no symptoms and has not tested positive, the quarantine period will depend on the vaccination status.

Positive COVID test: Employees can use CPSL when they cannot work or telecommute when they, or a family member they care for, tests positive for COVID-19. The FAQ states that the law does not require employees to take a particular type of COVID test. “An employee can take an over-the-counter rapid test (Antigen) or a scheduled test at a testing facility. The law does not specify the type of test and does not impose conditions on how the test is administered in order to qualify for leave.

Under the CPSL Act of 2022, employers can require employees to provide documentation of the test result. If an employee refuses, the employer can refuse the leave. The FAQs discuss examples of what might satisfy the documentation requirement. “This documentation could include, among other things, a medical record of the test result, an email or text from the test company with the results, a photo of the test result, or a contemporaneous text or email from the test company. employee to the employer indicating that the employee or an eligible family member has tested positive for COVID-19. Notably, this guidance is not from the general documentation FAQ, but from an FAQ regarding documentation when an employee requests retroactive payment for such an absence that occurred on or after January 1, 2022. 2022. It is not clear whether some of these looser documentation forms only apply to retroactive payment claims or also represent the labor commissioner’s position regarding COVID-19 positive absences that occur on or after February 19, 2022.

For COVID-19 positive absences, an employer may require employees to take another diagnostic test on or after the fifth day after the first test and provide documentation of the results, if the employer makes the test available at no cost to the employee, which according to the FAQ means “ensure the employee has a rapid test on hand or get an appointment at a testing center for the employee. A test was not made available by the employer if it was not received by the employee.

Extended absences for vaccines and recovery time: Employers may limit downtime to obtain and/or experience symptoms of a COVID-19 vaccine or booster shot to three days or 24 hours per shot, unless a provider of health care verifies that the employee or a family member continues to experience related symptoms. The FAQ discusses which verification confirms the need for a longer absence: “Medical certificate [verification, in a different FAQ] in this context, there would likely be a note from a health care provider indicating that the employee or family member continues to have side effects from the vaccine.

payslips: Information regarding CPSL must be available on pay stubs or other written notices employees receive on payday, beginning on the payday of the next full pay period following February 19, 2022. Employers had questions about How many information they had to include because, although the law expressly discuss only CPSL hours one employee usedthe law incorporates by reference a similar requirement under California’s Healthy Workplaces, Healthy Families Act (HWHFA), pre-COVID Paid Sick and Safety Leave Act, to display leave available for use. The FAQ clarifies this issue: “The SPSL 2022 differs from the SPSL 2021 in that the pay stub must list what has been used instead of what is available.”

What remains uncertain or unclear

While we know more now than when the law was signed into law on February 9, 2022, we don’t know everything, and most of what we don’t know relates directly or indirectly to the “two-bank” configuration of the law of 2022:

  • A bank’s leave hours “up to 40 hours” will only be available if the employee tests positive for COVID-19 or is caring for a family member who tests positive for COVID-19. COVID-19.
  • The second bank’s leave hours “up to 40 hours” will only be available for other covered reasons (quarantine or isolation, vaccination appointment or recovery, COVID symptoms and request for medical diagnosis, closure of a school or place of care for reasons related to COVID-19 on site).

For example, the FAQ does not address:

  • How to manage (and assign hours from one or more CPSL banks to) absences that could involve a reason covered by both banks, either simultaneously, for examplewhen an employee must quarantine or self-isolate after testing positive for COVID-19, or possibly, for examplewhen an employee exhibits symptoms of COVID-19, requests a medical diagnosis and that diagnosis reveals that the employee has contracted COVID-19.
  • that employers Homework provide two separate banks of CPSL for up to 40 hours that employees can use for specific reasons or if they can provide a single bank of CPSL of up to 80 hours that employees can use for any reason under the law.2
  • Whether it’s a pay stub or other writing provided on payday Homework include two separate lines for CPSL, one for each bank, or if there can include a separate line showing the aggregate amount of CPSL used by an employee.

We hope that the labor commissioner will resolve these issues soon.

Next steps

In addition to monitoring the FAQs for updates, employers should review the FAQs and determine what effect, if any, they have on CPSL’s policies, practices and procedures. Although many employers have a bit more time to determine how employees will receive notice of CPSL used because this obligation does not begin until payday for the next full pay period following February 19, 2022, many should expect to begin receiving requests related to retroactive payment or redesignation of used leave at, CPSL. Such requests could require significant administration, HR, and payroll time and resources, depending on the size of a company’s California workforce. The fact that the CPSL 2022 start date falls on a holiday weekend means that when these employees return on Tuesday, employers may find that their email and voicemail inboxes are just a little bit fuller than normal.