California enacts new COVID-19 paid sick leave law

California has reinstituted the requirement for COVID-19 paid sick leave. COVID-19 leave is considered supplemental, or in addition, to the state's existing paid sick leave requirement.  Employers covered by the law need only provide this supplemental paid sick leave to employees beginning on February 19, 2022, but leave rights are retroactive to January 1, 2022.  The law will remain in effect through September 30, 2022. 

Here are the other key elements of California's new COVID-19 supplemental paid sick leave law:

1.  Scope of law:  The law only applies to employers with 26 or more employees (and to certain public entities).

2.  Amount of leave:  As with the previous version of the law, full-time employees may receive up to 80 hours of supplemental leave. Non-full-time employees' leave will be based on a look-back for hours worked in a week (for those with normal weekly scheduled) or six months (for those that work variable hours). 

3.  Separate leave allowances:  There are two separate 40-hour leave allowances.

The first 40-hour bucket is available only to employees unable to work or telework for the following reasons:

• The employee is subject to (or caring for a family member subject to) a quarantine or isolation period prescribed by a health care provider or by federal, state, or local orders
• The employee or a family member is receiving a COVID-19 vaccine or booster. An employer may limit leave to three days or 24 hours total unless a health care provider verifies continuing symptoms
• The employee or a family member is experiencing symptoms related to a COVID-19 vaccine or booster. Here, too, an employer may limit leave to three days or 24 hours total unless a health care provider verifies continuing symptoms;
• The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis
• The employee is caring for a child whose school or day-care is closed or otherwise unavailable due to COVID-19. 

The second 40-hour bucket is available for leave needed when an employee tests positive for COVID-19 or is caring for a family member who tests positive for COVID-19. An employee does not need to exhaust the available from the first leave bucket before drawing from this second leave bucket.

An employer may require proof of the positive test results before paying this additional sick leave. If the employee refuses to provide such proof, an employer can deny the additional leave.

An employer may require the employee to submit to a diagnostic test on or after the fifth day after the initial positive test result and provide documentation of the result. The employer must make a test available at no cost to the employee.      

4.  Effect on Cal/OSHA ETS exclusion pay:  Employers cannot require employees to exhaust their supplemental paid sick leave before receiving exclusion pay for a work-related exposure under the Cal/OSHA COVID-19 Emergency Temporary Standard.

5.  Rate of pay for leave:  Nonexempt employees on leave will be paid according to their regular rate of pay calculation (not the "highest rate of pay" as used in the 2021 law). The maximum amount an employer is required to pay is US$511 per day per employee and the maximum aggregate total pay is US$5,110 per employee unless federal legislation increases these caps.

6.  Notice to employees:  Employers must display a notice (either physically in the workplace or through electronic means) detailing the availability of COVID-19 supplemental leave. A model notice is forthcoming from the Labor Commissioner.

Finally, employers must provide employees with a written notice of the amount of COVID-19 supplemental paid sick leave they have used, either on their pay stub or in a separate document on the employees' pay date. This notice must be given whether or not the employee has used any of this new leave. The document must show zero hours if the employee has not used any COVID-19 supplemental paid sick leave.