New California & Federal Employment Laws for 2022 – Part 2
By Randy A. Lopez
As of January 1, 2022, California passed many new employment laws and extended some already in effect that may impact you and your business. Below is a brief explanation of some of the new laws. If you were unaware of these new laws, please plan accordingly by updating your employee handbooks and taking the appropriate corrective actions.
Supplemental Paid Sick Leave (2022)
California has re-implemented supplemental paid sick leave (“SPSL”) that applies to employers with more than 25 employees to cover employees who are unable to work or telework due to COVID-related reasons. While it is similar to the previous supplemental paid sick leave, there are some distinct differences.
The law takes effect immediately and is retroactive to January 1, 2022, but an employer’s obligation to provide the 2022 COVID SPSL did not begin until February 19th. Employers are able to receive tax credit for providing SPSL.
- The law allows employees to use SPSL to care for family members impacted by COVID (i.e., children, parents, spouses, registered domestic partners, grandparents, grandchildren, and siblings).
- The law provides 80 hours of SPSL, however, these are allocated in two different ways:
- Pool No. 1: Employee can use up to 40 hours if they are unable to work or telework because they are: (a) subject to quarantine or isolation; (b) advised by health care provider to isolate or self-isolate; (c) experiencing COVID symptoms and seeking medical diagnosis; (d) caring for a family member who is subject to quarantine or isolation or been advised to isolate or self-quarantine by a healthcare provider; (e) caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID; (f) attending an appointment for themselves or a family member to receive a COVID vaccine or booster; and (g) experiencing symptoms or caring for a family member experiencing symptoms related to a COVID vaccine or vaccine booster that prevents the employee from working or teleworking. For leave related to symptoms associated with vaccines or boosters, employers may limit the total supplemental paid sick leave to 3 days or 24 hours. If more leave is requested, an employer may require the employee to provide verification from a health care provider that the employee or family member is experiencing ongoing symptoms related to the vaccine or booster.
- Pool No. 2: An employee may qualify for an additional 40 hours if they test positive or are caring for a family member who tested positive for COVID. Employees do not need to exhaust all SPSL from Pool No. 1 before using leave from Pool No. 2. Employers are allowed to require proof of positive test – including proof of an affected family member. If the employee is using leave from this pool, an employer may require testing on day five after the initial positive test.
- Employers who have already provided SPSL beyond regular paid sick leave, vacation time, etc., for time taken on or after January 1, 2022, may count those hours towards an employee’s SPSL, if the leave was used and paid for reasons provided in the new law as stated above, and the compensation equals or is greater than the compensation the employee would have received under the law.
- An employer may not require employees to use any other paid or unpaid leave, time off, PTO or vacation time before, or in lieu of, using SPSL. Employers are not allowed to require employees to use and exhaust SPSL while the employee is entitled to “exclusion pay” (under Cal-OSHA for employee(s) excluded from work because of a workplace COVID exposure).
- New Wage Statement Requirements: Employers are required to provide written notice, either through wage statement or a separate document, provided on pay-day that states: (a) the amount of SPSL available; and (b) the amount of SPSL the employee has used during that period, including if they did not use any.
- New Pay Rate Calculation: Regular rate of pay is calculated as: (a) same manner as regular rate of pay for the workweek in which the employee uses paid sick time, excluding any overtime pay if the employee works overtime in that workweek; or (b) dividing the total wages, not including overtime premium pay, by the total non-overtime hours worked, in the full pay periods of the prior 90 days of employment. For exempt employees, regular rate of pay is calculated in the same way as other forms of paid leave time. The amount of pay an employer is required to pay under SPSL is capped at $511 per day and $5,110 in the aggregate.
Additional resources re prevention plans and Cal-OSHA Emergency Temporary Standards:
Expansion of California Family Rights Act
The California Family Rights Act has expanded the definition of “family member” to include parents-in-law for whom an employee may seek leave in order to attend to the care of such person who has a serious health condition.
The law also modifies an aspect of the Department of Fair Employment and Housing’s (“DFEH”) Pilot Program to include mediation of family leave disputes between employers of small business and employees. Employers with 5 to 19 employees fall under this category.
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
The United States Senate recently passed a the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021”. The proposed bill, which the President is expected to sign, amends the Federal Arbitration Act to prohibit employers from including mandatory arbitration clauses in arbitration agreements that apply to claims of sexual harassment or assault. The Act also precludes any provisions whereby an employee waives their right to bring sexual harassment or assault claims jointly or on a class basis.
The law would apply to claims of sexual harassment and assault that arise after the Act goes into effect. Based on the current language of the bill and our understanding, even if an employee signed an arbitration agreement prior to the effective date of the law, it is unlikely that any claims relating to sexual harassment or assault that occur after the effective date of the law would be subject to arbitration.
- If/when signed, the law would take effect immediately.
- Employees can still opt to arbitrate such claims.
- Current versions of arbitration agreements and/or plans will need to be reviewed and revised accordingly.
- This may provide a “loop hole” for claims to avoid arbitration, i.e., asserting claims of sexual harassment with other claims that would be subject to arbitration.
- The Act goes beyond the workplace and applies to any individual who may be a victim of sexual harassment and/or assault in any non-working setting where a mandatory arbitration clause exists.
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We know this is a lot of new information to digest. If you have any questions relating to these new laws or any other issues, please do not hesitate to contact either Toni Y. Long or Randy A. Lopez directly.
DISCLAIMER: The information contained above is solely provided for informational purposes and does not constitute legal advice. All readers should consult with legal counsel for additional and/or current information, and before acting on any of the information presented.