California Governor Gavin Newsom signed Assembly Bill 152 into law on September 29, extending California’s 2022 COVID-19 Supplemental Paid Sick Leave law to December 31, 2022. The bill also creates a program that will reimburse qualifying small businesses and nonprofits for costs incurred providing employees with COVID-19 supplemental paid sick leave.

EFFECTIVE DATE

Because 2022 COVID-19 Supplemental Paid Sick Leave (CSPSL) was set to expire at the end of the month, Assembly Bill (AB) 152 is a “budget trailer” bill. This means that it took effect immediately upon Governor Newsom’s signature.

CONTINUING CSPSL EMPLOYER OBLIGATIONS

AB 152 extends the obligations and entitlements of California’s 2022 COVID-19 Supplemental Paid Sick Leave (CSPSL) law to December 31, 2022. It does not provide an additional or new leave bank for employees or otherwise create new obligations for employers. Instead, much remains the same: the qualifying reasons for which employees may use CSPSL; the definitions for covered employers, covered employees, and family members; the prescribed methods for calculating the amount of leave and rate of pay for leave; the rules for how CSPSL interacts with other leaves; and the posting and wage statement requirements. For a summary of 2022 CSPSL requirements, see our prior LawFlash.

EXPANSION OF PERMISSIBLE EMPLOYER-REQUIRED DIAGNOSTIC TESTING FOR CSPSL

While AB 152 does not create new obligations for employers, it does expand permissible employer-required diagnostic testing of employees. Under the current 2022 CSPSL law, if an employee requests CSPSL for their own illness, their employer may require testing on day five after the initial positive test.

Under AB 152, in addition to requiring testing on day five after an initial positive test, if the day five test result is positive, an employer is permitted to require the employee to submit to a second diagnostic test within no less than 24 hours. If the employee does not provide documentation of the day five test result or does not submit to the additional test at the employer’s request, the employer is not required to provide additional CSPSL.

SMALL BUSINESS AND NONPROFIT COVID-19 SUPPLEMENTAL PAID SICK LEAVE RELIEF GRANT PROGRAM

In addition to extending CSPSL to the end of the year and expanding permissible employer-required diagnostic testing, AB 152 establishes the California Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program. The program is set to be repealed on January 1, 2024. It is intended to assist qualified small businesses and nonprofits that incur costs for CSPSL by awarding up to $50,000 per applicant. There are number of exemptions excluding certain businesses and nonprofits from eligibility. Generally, however, to qualify for relief under the program, an applicant business or nonprofit must:

• be a “C” or “S” corporation, cooperative, limited liability company, partnership, limited partnership, or registered 501(c)(3), 501(c)(6), or 501(c)(19);
• have been operating since before June 1, 2021;
• be currently active and operating;
• have 26 to 49 employees and provide payroll data and an affidavit attesting to this fact;
• have provided CSPSL pursuant to California Labor Code sections 248.6 and 248.7; and
• provide organizing documents (e.g., Articles of Incorporation, Certificate of Organization, Fictitious Name Registration, Government-Issued Business License).

Grant money to qualifying applicants will only be awarded for reimbursement of CSPSL provided between January 1, 2022, and December 31, 2022. Moreover, applicants must provide proof of employee payroll records as verification to receive such grant money.

RAMIFICATIONS FOR EMPLOYERS

Given periodic surges of COVID-19 and the possibility of another surge this fall, the legislature’s extension of CSPSL to year-end comes as no surprise. Employers should continue to provide CSPSL to eligible employees in California and continue to report on wage statements or contemporaneously provide writings on the amount of CSPSL employees have used in 2022. Employers also now can consider requiring additional diagnostic testing for employees who test positive for COVID-19 on the fifth day after the initial positive result. Employers should cover the costs of any such required testing in California and should compensate non-exempt employees for their time.

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