July 8, 2022

Dear Employer: 

You have been identified as a Farm Labor Contractor (“FLC”), which is a business licensed and regulated by my office. As you are aware, as a FLC, you are legally mandated to comply with all state laws, including those related to the COVID-19 pandemic and paid sick leave.  Recently, my office received multiple complaints regarding FLCs failing to comply with California’s 2022 Supplemental Paid Sick Leave law (“2022 SPSL”). The nature of the complaints are that employees must work certain lengths of time or provide medical documentation before they can utilize 2022 SPSL. Employees are also reporting retaliation after complaining about 2022 SPSL noncompliance.

Separately, we have received multiple complaints about employees being retaliated against for complaining about unsafe working conditions amid persistently high daytime temperatures. The purpose of this letter is to remind you of your obligation to comply with the Labor Code as an employer and FLC and warn about the consequences of noncompliance. My office is committed to vigorously enforcing California’s minimum labor standards and antiretaliation protections.

2022 SPSL

The 2022 SPSL became effective February 19, 2022.  Pursuant to this law, employers with 26 or more employees must provide up to 80 hours of 2022 SPSL to full-time employees that are unable to work or telework for specified COVID-19 related reasons. Part-time employees must also be provided 2022 SPSL based on the average number of hours they have worked.  For more information on how to calculate 2022 SPSL for part-time employees, please see our FAQs page available on our website at

www.dir.ca.gov/dlse/COVID19resources.

Of the 80 hours afforded under 2022 SPSL, up to 40 hours of the leave can be used for any qualifying reason, including an employee’s or their family member’s isolation, quarantine, vaccination, or recovery from vaccination side effects. It may also be used for an employee’s care for a child whose school or place of care is closed because of COVID-19. The other 40 hours of leave is available only when an employee or their family member tests positive for COVID-19.

Importantly, there is no requirement that employees work any length of time before they can utilize 2022 SPSL. Moreover, employers generally may not require medical documentation before 2022 SPSL is used. An employer may require medical documentation in limited circumstances, such as leave being used for a COVID-19 positive test or if leave is in excess of 3 days or 24 hours for a single vaccine appointment and related recovery time.[1] Lastly, 2022 SPSL is retroactive to January 1, 2022, which means that covered employees who took qualifying leave between January 1, 2022 and February 19, 2022, can request payment for that leave if it was not paid by the employer. 

An Employee’s Right to a Recovery Period

As stated above, my office has also received multiple complaints about employees being retaliated against for complaining about unsafe working conditions amid persistently high daytime temperatures. As a reminder, employers are prohibited from requiring an employee to work during a recovery period, which is a cooldown period provided to employees to prevent heat illness. An employer who fails to provide an employee with a recovery period as required by law will be required to pay their employees one additional hour of pay at the employee’s regular rate of compensation for each workday a recovery period is not provided                                                                                                                              

Protection Against Retaliation

California law prohibits employers from retaliating against employees for exercising their rights under the Labor Code. Employers cannot terminate, demote, discipline, make immigration-related threats, or reduce the pay or hours of an employee for requesting or utilizing paid sick leave (including 2022 SPSL), complaining about unsafe working conditions, refusing to work where an occupational safety or health standard or order would be violated, or disclosing a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. In addition to other appropriate remedies, employers who violate these laws are liable for a civil penalty of up to $10,000 for each instance of retaliation. retaliation. Corporations and limited liability companies are also subject to an additional civil penalty of up to $10,000 for each instance of retaliation.

Consequences of Failing to Comply with California Law

As a FLC, you are reminded that my office cannot issue or renew a FLC license until we are satisfied with a licensee’s character, competency, and responsibility. My office may also move to revoke, suspend, or refuse to renew a FLC license if we determine a licensee has violated any law that governs  employees’ wages, health, safety, or welfare. A FLC may also be liable for a civil penalty for failing to comply with California law and may be guilty of a misdemeanor punishable by a fine or imprisonment in the county jail for not more than six months, or both. Compliance with California law is paramount for a FLC.

Conclusion

It is imperative that we all work together for the safety of all of California’s workers, employers, and their families. Thank you for your critical contribution in making California a safer place to work.  

 

Sincerely, 

Lilia Garcia-Brower

California Labor Commissioner

[1] For more information, please visit https://www.dir.ca.gov/dlse/COVID19Resources/2022-SPSL-FAQs.html.