AB 152, signed into law on September 30, 2022, makes two significant changes to Labor Code section 248.6. First, AB 152 extends the timeline specified in SB 114 for employees who have not exhausted their Supplemental Paid Sick Leave (SPSL) from September 30, 2022, to December 31, 2022. This change in the timeline does not create a new or an additional bank of SPSL as specified in SB 114; employees are still only allotted 40 hours of SPSL for 2022 and can access an additional 40 hours for qualifying reasons for up to a maximum of 80 hours.
In addition, AB 152 also provides employers with additional discretionary authority concerning when employees may be required to submit to COVID-19 testing to end their isolation periods and return to the workplace.
As written, Labor Code section 248.6 allows employers to require that an employee who has tested positive for COVID-19 submit to a diagnostic test on or after the fifth day after the test was taken and provide results to their employer. The addition of AB 152 gives an employer the authority to require an employee to submit to a second diagnostic test within no less than 24 hours of the first diagnostic test. If an employee has requested to use SPSL to care for a family member who has tested positive for COVID-19, the employer may also require that an employee provide documentation of that family member’s test results before paying SPSL. Employers have no obligation to provide SPSL to an employee who refuses to provide documentation of results from diagnostic testing and may lawfully deny the employee SPSL.
Since AB 152 makes amendments to Labor Code 248.6 and allows for additional information from the employee regarding diagnostic testing, the employer should advise their employees that additional follow-up diagnostic testing may be required when requesting to use SPSL for COVID-19.
For questions or additional assistance regarding SPSL, we encourage members to utilize the Labor Law/Employment Practices Services by reaching out to Patti Eyres.