Governor Newsom Signs Into Law Assembly Bill 152, Extending COVID-19 Supplemental Paid Sick Leave Through December 31, 2022

On September 30, 2022, Governor Gavin Newsom signed Assembly Bill (“AB”) 152 into law.

The bill amends the Labor Codes, making several important changes to how COVID-19 Supplemental Paid Sick Leave (“SPSL”) is administered, and also sets up a grant relief fund for small non-profits and other businesses with between 26-49 employees

The changes to the law will take effect immediately.

The purpose of this Special Bulletin is to advise employers of the details of this legislation so they can take immediate action to revise their policies and practices and remain in compliance with the law.

Changes to SPSL

AB 152 makes two significant changes to SPSL:

Deadline for Employees to Use Existing SPSL Entitlements Extended to December 31, 2022

First, AB 152 extends the deadline for employees who have not exhausted their SPSL allotments to use such leave.

Currently, SPSL expires on September 30, 2022.  AB 152 extends that expiration date by three months to December 31, 2022.

Importantly, the amendment does not provide employees with any additional SPSL, but merely extends the period during which employees who have not exhausted their SPSL may use such leave.

As a result,, employers should continue to allow employees who have not exhausted their SPSL entitlements to use such leave for any qualifying reasons[1] before December 31, 2022.

Additional Authority to Require Second Follow-Up COVID-19 Tests for COVID-19 Positive Employees

Second, AB 152 provides employers the ability to require that employees who have tested positive for COVID-19 submit to COVID-19 testing twice in order to end their isolation periods and return to work.

Currently SPSL authorizes employers to require that an employee who tested positive for COVID-19 submit to a follow-up COVID-19 test on or after the fifth (5^th) day following the initial positive test in order to expedite an end to the employee’s isolation and their return to work.Employers are also authorized to require that employees provide documentation of the result from such follow-up test, and to deny the employee the use of SPSL if they refuse to provide such documentation.

AB 152 provides employers authority to require that an employee submit to a second follow-up test in the event that the first follow-up test produces a positive test result. The amended language authorizes employers to require that an employee who tests positive on or after the fifth (5^th) day submit to a second follow-up test within 24 hours of the first test.

AB 152 provides that, if the employee refuses to submit to either of the follow-up tests or provide documentation of the results from such tests, the employer may lawfully deny the employee SPSL.

As a result of these amendments, employers should advise their employees that they may be subject to an additional follow-up COVID-19 test in the event that they request SPSL for a COVID-19 case and that, in order to receive SPSL for such reason, employees will need to provide documentation of such test results.   

The California Small Business and Nonprofit COVID-19 SPSL Relief Grant Program

The new law also establishes the Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program (“Program”).  Itis designed to provide grant relief to qualified small businesses and nonprofits in order to defray the costs associated with their provision of SPSL.  Qualified entities may receive grant funding equal to the actual costs that they incurred related to their provision of SPSL between January 1 and December 31, 2022, up to a limit of $50,000.  The Program will be administered by the California Office of the Small Business Advocate.

In order to qualify for a grant under this Program, a non-profit entity must satisfy each of the following criteria: (1) be currently active and operating; (2) have been operating prior to June 1, 2021; (3) employ between 26 and 49 employees and provides payroll data and an affidavit attesting to that fact; (4) have been providing SPSL to eligible employees, as required by law; and (5) provides organizing documents, including a 2020 or 2021 tax return or Form 990, and a copy of official filing with the Secretary of State or with the local municipality, as applicable, including, but not limited to, Articles of Incorporation, Certificate of Organization, Fictitious Name of Registration, or Government-Issued Business License.

Several exceptions in the legislation render certain entities ineligible for the grant funding.   These exceptions include “[b]usinesses that restrict patronage for any reason other than capacity.”^[2]  It is unclear whether this restriction might apply to private schools .

Liebert Cassidy Whitmore attorneys are familiar with the legislation and are available to assist employers revise their policies and practices in order to comply with these proposed changes.

[1] As a reminder, the eight qualifying reasons are:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the California Department of Public Health (“CDPH”), the federal Centers for Disease Control and Prevention (“CDC”), or a local public health officer who has jurisdiction over the workplace.
2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
3. The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
4. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who:
   1. Is subject to a CDPH, CDC, or local health officer order or guidance to isolate or quarantine, OR
   2. Has been advised by a health care provider to isolate or quarantine.
7. The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
8. The covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19

[2] Government Code § 12100.975(h)(2)(H).