California employers with 26 or more employees have been required to provide Supplemental Paid Sick Leave ("SPSL") for qualifying COVID-19 related reasons since SPSL was renewed for 2022. Originally set to expire on September 30, 2022, the Governor has signed AB 152 into law and this extends the availability of SPSL through December 31, 2022. The qualifying reasons, rate of pay, and calculation of hours remain the same, and these details are found in our alert from earlier this year: COVID-19 Supplemental Paid Sick Leave Returns for California Employers.
Importantly, the SPSL extension does not increase an employee’s leave entitlement. Thus, if an employee has used all of their SPSL hours prior to October 1, 2022, they do not receive any additional hours. If they have used some but not all of their SPSL hours, they can use the amount remaining through December 31, 2022.
Also, when employees advise of a COVID-19 positive result, employers may require employees to submit to a diagnostic test on or after the fifth day following the date they first took the test, and must provide documentation of those results. If the diagnostic test is positive, the employer may also require the employee to submit to a second diagnostic test within no less than 24 hours. The employer shall make such tests available at no cost to the employee. Employers may deny a request for SPSL for a COVID-19 positive result (using hours from “Bucket B”) if the employee refuses to provide documentation of the test result or refuses to submit to the COVID-19 test.
AB 152 establishes a grant program to allow small businesses to recover up to $50,000 paid out in SPSL benefits over the course of the year. The grant program will be administered through the Office of the Small Business Advocate ("OSBA") within the Governor’s Office of Business and Economic Development ("GO-Biz"). The application process is not yet available but the bill sets forth the criteria. The grant is available to qualifying small businesses and non-profits. The grant is not available to organizations without a physical presence in the state, those engaged primarily in political or lobbying activities, and financial institutions that primarily lend money.
To qualify, the organization must:
- Be a “C” corporation, “S” corporation, cooperative, limited liability company, partnership, limited partnership, registered 501(c)(3), 501(c)(6) or 501 (c)(19);
- Have begun operating before June 1, 2021;
- Be currently active and operating;
- Have 26 to 49 employees and provide payroll data and an affidavit signed under the penalty of perjury attesting to the number of employees;
- Have provided SPSL pursuant to the requirements of the law; and
- Provide organizing documents including 2020 or 2021 tax returns or Form 990s, official filings with the Secretary of State of local municipalities such as Articles of Incorporation, Certificate of Organization, Fictitious Name of Registration, or Government-Issued Business License.
Please reach out to your trusted Gordon & Rees attorney with questions or contact the firm's Employment Law practice group to understand the implications of this new legislation.