Five Things To Know About California’s New COVID-19 Paid Sick Leave

UPDATE: On Sept. 29, 2022, Governor Newsom signed AB 152 into law, immediately extending from Sept. 30, 2022 through Dec. 31, 2022, California’s COVID-19 Supplemental Paid Sick Leave requirement for employers with 26 or more employees. AB 152 does not entitle employees to a new bank of paid sick leave, but allows employees to continue to access any remaining COVID-19 supplemental paid sick leave through the end of the year.

AB 152 does not create any new obligations for employers, but does allow employers to require employees seeking or using leave to submit to a third diagnostic test. Current law allows employers to require that an employee submit to a diagnostic on or after the fifth day after the initial positive test. Now, if that second test is positive, the employer may require the employee to submit to a third test within no less than 24 hours. The employer has no obligation to provide the additional paid sick leave if the employee refuses to submit to the second or third diagnostic test.

AB 152 also sets up a program to provide grants of up to $50,000 to qualified small businesses to cover costs incurred for COVID-19 supplemental paid sick leave and provides tax breaks for those small businesses that receive such grants.

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On Feb. 9, 2022, Gov. Gavin Newsom signed new legislation, COVID-19 Supplemental Paid Sick Leave (Senate Bill 114), into law that will require all employers with more than 25 employees to provide their employees with up to 40 hours of COVID-19 supplemental paid sick leave. The legislation is retroactive to Jan. 1, 2022 and is currently set to expire on Sept. 30, 2022.

This article highlights five things employers should know about the bill.

One: When an Employee is Eligible for Supplemental Paid Sick Leave

An employee is eligible for up to 40 hours of supplemental paid sick leave if the employee is unable to work or telework and:

1. is subject to a quarantine or isolation period related to COVID-19;
2. has been advised by a healthcare provider to isolate or quarantine due to COVID-19;
3. is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19;
4. 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. is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
6. is caring for a family member who is subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to isolate or quarantine due to COVID-19;
7. is caring for a child (as defined below) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Two: When an Employee is Eligible for Additional Supplemental Paid Sick Leave

An employee is eligible for up to 40 additional hours of supplemental paid sick leave (80 hours total) if:

1. the employee is unable to work or telework and either the employee tests positive for COVID-19 OR the employee’s family member, for whom the employee is providing care, tests positive for COVID-19; AND
2. the employee provides documentation of the positive test to the employer upon request.

Documentation

An employer may require that the employee provide documentation of their own or their family member’s positive COVID-19 test before paying the 40 hours of additional leave. An employer has no obligation to pay the additional leave to an employee who refuses to provide documentation of their or their family member’s positive COVID-19 test. This applies to employee requests for future and retroactive payment of the COVID-19 supplemental paid sick leave. However, employers should be practical about strict application of this requirement when responding to requests for retroactive application for test results before this law was passed. There may be instances when the employee is “unable to” as opposed to “refuses to” provide documentation (i.e., they took, but did not save, an at-home rapid test).

Employee Ending Isolation

An employer may require that the employee (who tested positive for COVID-19) take a second test on or after the fifth day after the first positive test. The employer shall make such a test available at no cost to the employee. If the employee’s second test is negative, the employee may return to work if:

1. symptoms are not present or are resolving,
2. they wear a face covering around others through the 10th day after the positive test, and
3. they avoid people who are immunocompromised or at high risk for severe disease through the 10th day after the positive test.

Three: Amount of Leave

Full-Time Employees (40 Hours)

An employee who is considered full time OR an employee who worked, or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.

Part-Time Employees (Equal to Average or Normal Hours Worked)

1. Part-time employees with a normal schedule are entitled to the total number of hours they are normally scheduled to work over one week.
2. Part-time employees with variable schedules who have worked more than seven days are entitled to seven times the average number of hours they worked each day in the past six months, or if they have worked less than six months, the total duration of employment.
3. Part-time employees with variable schedules who have worked seven days or fewer are entitled to the total number hours they have worked.

Cap

The total maximum amount an employee would be entitled to is 80 hours of supplemental paid sick leave between Jan. 1, 2022, and Sept. 30, 2022.

Four: Offset for Prior Supplemental Paid Leave

If an employee took other supplemental paid leave on or after Jan. 1, 2022 for the same reasons listed above and that leave was compensated in an amount equal to or greater than the amount of compensation to which the employee would be entitled to under this legislation, then the hours of the other paid leave may be counted toward the total number of hours an employee is entitled to under this legislation. For example, paid leave provided to employees under Cal/OSHA’s Emergency Temporary Standard’s exclusion pay or local supplemental paid sick leave orders may be counted toward the total supplemental leave available under this legislation.

Paid leave provided under Labor Code section 246 (California Paid Sick Leave) cannot be used for purposes of offset.

Five: Each Hour of Supplemental Paid Leave Must Be Paid at the Regular Rate

Each hour of COVID-19 supplemental paid sick leave must be compensated at a rate equal to the following (this is similar, but not identical, to the rate structures under Labor Code section 246):

For Non-Exempt Employees

Each hour of COVID-19 supplemental paid sick leave can be calculated as follows:

1. in the same manner as the regular rate of pay for the workweek in which the employee uses the sick time, whether or not the employee actually works overtime in that workweek or
2. by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment, provided that, for employees paid by piece rate, commission or other method that uses all hours to determine the regular rate of pay, total wages (not including overtime) shall be divided by all hours to determine the correct rate.

For Exempt Employees

COVID-19 supplemental paid sick leave shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Notwithstanding the above, an employer is not required to pay more than $511 per day or $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave taken by the covered employee.

Relevant Definitions

Child

A biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.

Family Member

• child (as defined above);
• biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child;
• spouse;
• registered domestic partner;
• grandparent;
• grandchild; or
• sibling.

Disclaimer: Laws, regulations, and guidance on matters related to COVID-19 change rapidly. Please contact your Payne & Fears attorney for current guidance.