“What is behind me still remains of ahead of me.” –László Krasznahorkai

On the surface, it looks like things are back to normal. Entering spooky season, however, California employers should not assume the coast is clear. One of the nation’s most substantial COVID-19 laws, California’s Supplemental COVID-19 Paid Sick Leave (“SPSL”), did not end on Friday, as originally scheduled. On Sept. 29, 2022, Governor Newsom extended it to Dec. 31, 2022. California employers with 26 or more employees will still be required to provide Supplemental COVID-19 Paid Sick Leave. This departs from last year, where the law expired in September 2021, and California did not resurrect it until late February (with a retroactive application to Jan. 1, 2022).

The extension adds one major development: is certain businesses might be eligible to get up to $50,000 back from the state to cover SPSL expenses.

For more information on how the law operates, please see our previous release. 

A refresher for covered employers

• SPSL allows employees up to 80 hours of additional sick leave for covered reasons. Unlike other, similar local laws that may run concurrently with SPSL, SPSL is available in addition to other leave to which an employee is entitled under law or company policies. Those include, but are not limited to:

  • Paid sick leave

  • PTO or paid vacation

  • California ETS Exclusion Pay

NOTE: The SPSL extension does not increase the amount of leave permitted under the law. Employees who already exhausted available SPSL are not entitled to additional leave and must use available time off like paid sick leave if they need additional time off for a reason otherwise covered under SPSL.

• The law overlaps past the expiration. In other words, an employee who needs and qualifies for SPSL on Dec. 31, 2022 might be entitled to the full period allowed under the law if their eligibility date falls within the extended remaining period.

• Employers should be very careful about asking for notes from an employee’s medical provider. This law allows employers to ask for test confirmations in certain circumstances (now expanded regarding diagnostic tests, see below), but these requests must be handled with caution. When in doubt, ask an attorney or HR professional familiar with the law. Also remember that certain local laws (example only) extend the doctor note timelines.

•  Employers should update workplace postings.

Major changes

• Testing requirements: An employer can deny SPSL benefits to any employee who refuses to submit to a diagnostic test. This adds a new layer to the law’s earlier iteration that allowed employers to deny benefits to employees who refused to take any test. Moreover, if a diagnostic test is positive, the employer may also require the employee to submit to a second diagnostic test within no less than 24 hours.” This last sentence is unclear on whether it means within 24 hours or after 24 hours expires. If and when California clarifies this language with additional guidance, we will update this alert.

• Small business grants: In what may be a relief to many employers, California may pick up the tab, or at least part of it. The updated law lists (and excludes) specific types of small businesses and nonprofits that may be entitled to a $50,000 grant for the costs of providing 2022 SPSL. To qualify, employers must:

  • Have begun operating before June 1, 2021

  • Be currently active and operating

  • Have 26 to 49 employees, subject to submission of payroll data and required affidavits

  • Have a physical presence in the state

A number of exceptions apply, among those certain financial institutions. Employers should consult the law itself and an attorney to determine if they are qualified, and should also be prepared to submit certain corporate documents with their application.

California normally provides more clarity on implementation in the weeks after updating a law like this, and the text of the law itself promises a marketing campaign in the near future on the small business grants program. For those who remember when PPP ran out, employers should post haste to see if they are eligible to apply for those grants.