The return of supplemental paid sick leave for COVID-19 is not a surprise to California employers. We’ve been watching the proposals unfold, and the Governor signed the law yesterday, February 9, 2022. The new law is similar to the 2020 COVID-19 supplemental paid sick leave, but not identical. So read on to learn the key points of the new law.
The law becomes effective on February 19, 2022, but it is retroactive to January 1, 2022. It expires on September 30, 2022.
The law applies to employers who employ more than 25 employees.
An employee is entitled to up to a total of 40 hours, depending on how many hours the employee generally works per week, and subject to certain limitations discussed below.
- Full-time or 40-hour per week employees are entitled to up to 40 hours.
- Part-time employees are entitled to up to their normally scheduled weekly hours.
- Variable schedule employees are entitled to seven times the average daily number of hours worked each day in the six months preceding the date of the sick leave.
Employees are entitled to the supplemental sick leave only if they cannot work or work remotely for one of the following reasons
- The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance from the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
- The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for a family member who’s subject to a government quarantine, isolation order or guidance; or who has been advised by a health care provider to isolate or quarantine.
- The 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.
- The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
- The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster.
The number of hours an employee may use is subject to the following limit:
- For each vaccination or vaccine booster, an employer may limit the total COVID-19 supplemental paid sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that the employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster. The 3-day or 24-hour limitation applied to each vaccine or vaccine booster includes the time used to get the vaccine or vaccine booster.
Employees are entitled to “additional paid sick leave,” up to the same number of hours as calculated above, under the following conditions:
- The employee or the family member the employee is caring for tests positive for COVID-19.
- The employer may request documentation of the employee’s or the family member’s test results. If not provided, the employer is not required to pay the additional sick leave.
- If the employee tested positive, the employer may require the employee to take another test on or after the fifth day from the date that the first positive test was taken and provide the results to the employer.
Importantly, employees need not use all of the hours they are entitled to under the first portion of the paid sick leave before using the “additional paid sick leave hours.” So, for example, your full-time employee may take paid sick leave because he is experiencing COVID-19 symptoms and use 16 hours of leave. He may then test positive and use 16 hours of the “additional paid sick leave” upon presentation of his test results. He still has 24 hours of paid sick leave he can use for any of the enumerated reasons for which the first “bank” of hours can be used. Thus, he could take 24 hours off because his child’s school closes for COVID-19.
For non-exempt employees, the sick leave is paid at the regular rate of pay, up to $511 per day. There is also the option to calculate the rate of pay on a 90-day lookback method. Exempt employees are paid in the same manner as calculated for other types of leave.
Employees may not be required to use other types of leave first, and employers may not use the supplemental paid sick leave to replace obligations under the Cal/OSHA COVID-19 regulation.
The paid sick leave benefits must be shown on employee wage statements as a separate line item.
Covered employers must display a poster by February 19, explaining the new law. The Labor Commissioner is to provide the poster via its website no later than February 16. Employers can email the poster to remote workers.
The above is a summary of the law’s key points. We recommend that you read the new law in full.