California Reenacts COVID-19 Supplemental Paid Sick Leave

February 9, 2022
On February 9, 2022, Governor Newsom signed into law Assembly Bill No. 84, which provides COVID-19 supplemental paid sick leave to certain employees. California previously enacted COVID-19 supplemental paid sick leave in September 2020 to fill gaps left by the Families First Coronavirus Response Act (covered here). After this leave requirement expired on December 31, 2020, California reenacted COVID-19 supplemental paid sick leave and broadened the circumstances under which an employer was required to provide leave (covered here). This law expired on September 30, 2021, since which time California employees have been left without access to COVID-19 supplemental paid sick leave unless otherwise provided for under local regulations. 
 
AB 84 is similar to its predecessors and will take effect 10 days after enactment. The requirement to provide COVID-19 supplemental paid sick leave applies retroactively to January 1, 2022, and will remain in effect until September 30, 2022.
  • Covered Employers. Covered employers are employers in the state of California with more than 25 employees.
     
  • Covered Employees. Covered employees are employees who are unable to work or telework for an employer due to any of the reasons which qualify the employee for COVID-19 supplemental paid sick leave.
     
  • Qualifying Reasons for COVID-19 Supplemental Paid Sick Leave. An employer must provide COVID-19 supplemental paid sick leave to each covered employee if that employee is unable to work or telework due to any of the following reasons:
    1. The employee is subject to a quarantine or isolation period related to COVID-19. If the employee is subject to more than one quarantine or isolation period, the employee must be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period.
    2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
    3. The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster.
    4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework. For each vaccination or booster, an employer may limit the total leave to 3 workdays 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 the vaccine or booster. The 3-workday or 24-hour limitation includes the time used to get the vaccine or booster.
    5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    6. The employee is caring for a family member who is subject to a quarantine or isolation period or who has been advised by a health care provider to isolate or quarantine.
    7. 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.
       
  • Amount of COVID-19 Supplemental Paid Sick Leave. A covered employee is entitled to the following hours of COVID-19 supplemental paid sick leave:
    1. An employee is entitled to 40 hours of leave if:
      • The employer considers the employee to work full time; or
      • The employee worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.
    2. An employee who does not satisfy the criteria set forth above is entitled to the following amount of leave:
      • If the employee has a normal weekly schedule, the total number of hours the employee is normally scheduled to work over one week.
      • If the employee works a variable number of hours, seven times the average number of hours the employee worked each day in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation must instead be made over the entire period the employee has worked for the employer.
      • If the employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, the total number of hours the employee has worked for that employer.
    3. If an employee, or a family member for whom the employee is providing care, tests positive for COVID-19, the employee is entitled to additional leave in an amount not to exceed the amounts set forth above.
      • If the employee tested positive, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the test was taken and provide documentation of those results. The employer must make such a test available at no cost to the employee.
      • If the employee requests to use additional leave because a family member for whom they are providing care tests positive for COVID-19, the employer may require that the employee provide documentation of that family member’s test results before paying the additional leave.
      • The employer has no obligation to provide additional leave for an employee who refuses to provide documentation of the test results upon the request of the employer.
      • The employee does not need to exhaust the leave to which they are otherwise entitled under the law before using this additional leave.
    4. Employees are entitled to a maximum of 80 hours of COVID-19 supplemental paid sick leave for the period between January 1, 2022, and September 30, 2022.
       
  • Compensation Rate. Each hour of COVID-19 supplemental paid sick leave must be compensated at the following rates:
    1. For nonexempt employees:
      • Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, excluding any overtime pay if the employee works overtime in that workweek; or
      • Calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total nonovertime hours worked in the full pay periods occurring within the prior 90 days of employment; provided that, for nonexempt 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 premium pay, must be divided by all hours, to determine the correct amount of leave.
    2. For exempt employees: Calculated in the same manner as the employer calculates wages for other forms of paid leave time.
       
  • Cap on Amount of Leave. The amount of pay an employer is required to pay for COVID-19 supplemental leave is capped at $511 per day and $5,110 in the aggregate unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the Emergency Paid Sick Leave Act, in which case the new federal dollar amounts will apply. An employee who has reached the maximum amounts of COVID-19 supplemental paid sick leave may choose to utilize other paid leave that is available in order to fully compensate the employee for leave taken.
     
  • Interaction with Other Available Relief. The total number of hours of COVID-19 supplemental paid sick leave to which an employee is entitled is in addition to any paid sick leave that may be available to the employee under California Labor Code section 246. An employer may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave. An employer also may not require an employee to first exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide paid leave for reasons related to COVID-19 under any Cal-OSHA COVID-19 Emergency Temporary Standards.
     
  • Employer Offset. If an employer pays a covered employee another supplemental benefit for leave taken on or after January 1, 2022 that (i) is payable for one of the qualifying reasons set forth above and (ii) compensates the employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the employee is entitled, then the employer may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide. An employer may not use as an offset any paid sick leave to which the employee is entitled under Labor Code sections 246, 248(e), 248.1(f) or 248.2(f), but employers may use as an offset paid leave provided pursuant to any federal or local law in effect or that became effective on or after January 1, 2022, if the paid leave is provided to the employee under that law for any of the same reasons for which leave is available under AB 84.
     
  • Enforcement. The law requires the Labor Commissioner to enforce the requirements as if COVID-19 supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave” under various provisions of the California Labor Code.
     
  • Notice. The employer must provide an employee with written notice that sets forth the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period in which it was due to be paid on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. The employer must list zero hours used if a worker has not used any leave. This requirement is not enforceable until the next full pay period following the date that the law takes effect. If an employer’s covered employees do not frequent a workplace, the employer may disseminate notice through electronic means.
     
  • Retroactive Effect. The requirement to provide COVID-19 supplemental paid sick leave applies retroactively to January 1, 2022. Employers may require employees who request retroactive payment to provide documentation of a positive COVID-19 diagnostic test during the relevant period. The provisions governing retroactive payments are as follows:
    1. If the employee was not compensated in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the employee is entitled, upon request by the employee, the employer must provide the employee with a retroactive payment for the covered amount.
    2. If the employee was compensated for the leave in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the employee is entitled, upon request by the employee, the employer must credit the employee for any leave hours used for COVID-specific leave.
    3. For any retroactive payment, the number of hours of leave corresponding to the amount of the retroactive payment counts towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide.
    4. Retroactive payments must be paid on or before the payday for the next full pay period after the request of the employee and must be reflected on the written notice for the corresponding pay period.
    5. The retroactive payment requirement is in addition to the requirement in Labor Code section 248.2(f) that an employee taking COVID-19 supplemental paid sick leave at the time of the expiration of the previous COVID-19 supplemental paid sick leave law must be permitted to take the full amount of such leave to which that employee otherwise would have been entitled under the expired law.
       
    As the COVID-19 situation continues to develop, and federal, state and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.