Assembly Bill 152 (AB 152) amends the Labor Code, making several important changes to how COVID-19 Supplemental Paid Sick Leave (SPSL) is administered and sets up a grant relief fund for small non-profits and other businesses with between 26-49 employees. AB 152 extended the time employees could use SPSL from September 30, 2022, when it was set to expire, to December 31, 2022. Governor Newsom signed AB 152 on September 30, 2022, and the law took effect immediately.
Revisions to SPSL
AB 152 amends SPSL in two significant ways.
First, AB 152 extended the deadline for employees who had not exhausted their SPSL allotments.
Importantly, AB 152 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 through December 31, 2022.
Second, AB 152 also provides employers the ability to require employees who have tested positive for COVID-19 to 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 (5th) 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 tests, 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 submits 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 (5th) 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 a follow-up test or provide documentation of the results from such tests, the employer may lawfully deny the employee SPSL.
Because 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
AB 152 also establishes the Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program (Program). The Program provides grant relief to qualified small businesses and nonprofits in order to defray the costs associated with their provision of SPSL to employees. 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 small business or non-profit must satisfy each of the following criteria:
- Be currently active and operating;
- Have been operating prior to June 1, 2021;
- Employ between 26 and 49 employees and provides payroll data and an affidavit attesting to that fact;
- Have been providing SPSL to eligible employees, as required by law; and
- Provide 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 to AB 152 render certain entities ineligible for grant funding. These exceptions include “[b]usinesses that restrict patronage for any reason other than capacity.” It is unclear at this time whether this restriction might apply to private schools.
(Adds and repeals 12100.96 through 12100.985 to the Government Code, amends Sections 248.6 and 248.7 of the Labor Code, amends Sections 17158 and 24312 of, and adds and repeals Section 19295.1 and 19295.2 of the Revenue and Taxation Code.)
