Overview:

California’s third iteration of COVID-19-related supplemental paid sick leave is very similar to the 2021 version (see our prior post here). The new law applies to employers with 26 or more employees, took effect on February 19, 2022, and applies retroactively to sick leave taken beginning on or after January 1, 2022.  This means employers may have to compensate employees for sick leave they have already taken this year (if an eligible employee makes a verbal or written request for retroactive compensation).  The protections of this law will remain in place until September 30, 2022, unless extended.  Employers must give employees notice of the law and comply with new wage statement requirements.

Action Items (display poster; update wage statements; review FAQs):

Poster:  A designated poster must be displayed in the workplace and emailed to employees who do not frequent any physical workplace.

Wage Statements:  Instead of providing the available COVID-19 paid sick leave balance on wage statements (or on separate written notices issued on pay day) as previous versions of the law required, employers now only need to list the total amount of COVID-19 paid sick leave that has actually been used by the employee.  If no such leave has been used throughout that pay period, then the wage statement (or a separate written notice issued on pay day) must indicate that zero hours of COVID-19 paid sick leave has been used.  For employees who work a variable schedule, the supplemental paid sick leave balance line item can be satisfied by performing an initial calculation of hours and indicating “variable” next to that calculation.  All employers subject to this new law should immediately update their wage statements to ensure compliance.

FAQs:  Savvy employers will review the FAQs regarding this new law and consult with legal counsel if they have any questions.

Reasons for Leave (2 separate categories or “leave banks” – 40 hours per category/bank):

Two categories (or “leave banks”) are available to employees who are unable to work (or telework) for certain Covid-related reasons, with each bank containing a maximum of 40 hours.  The first 40-hour bank applies to a situation where an employee (or their family member) tests positive for COVID-19.  The second 40-hour leave bank applies to all other covered reasons (such as getting vaccinated and providing care), as set forth below.  Note that the term “family member” only includes a child, parent, spouse, registered domestic partner, grandparent, grandchild, or sibling.

Leave Bank #1 (positive COVID-19 test):  This applies where either (i) the employee tests positive for COVID-19 or (ii) the employee is caring for a family member who tested positive for COVID-19.  Note that if the employer “learns that the employee is not requesting 2022 COVID-19 Supplemental Paid Sick Leave for a valid purpose,” then the employer may condition its payment of supplemental paid sick leave for this category of leave upon the employee providing evidence of a positive test for themselves or the family member they are caring for.

In addition, if an employee tests positive, the employer may require such employee to submit to a diagnostic test (at no cost to the employee) on or after the fifth day and require the employee to provide documentation of those test results.  Such documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

Leave Bank #2 (vaccines; care):  This applies to the following situations:

(i)      Vaccines (getting them and recovering from them):  The employee is attending a vaccine (including booster) appointment for themselves or a family member or cannot work or telework because they have vaccine—related symptoms or are caring for a family member with vaccine-related symptoms. An employer may limit an employee to 24 hours or 3 days of leave for each vaccination or booster appointment and any consequent side effects, unless a health care provider verifies that more recovery time is needed.

(ii)     Quarantine; Isolation; SymptomsThe employee:

(a) is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the California Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer with jurisdiction over the workplace; or

(b) has been advised by a healthcare provider to quarantine; or

(c) is experiencing COVID-19 symptoms and seeking a medical diagnosis.

(iii)    Caring for Family MemberThe employee:

(a) is caring for a family member who is subject to a COVID-19 quarantine or isolation period; or

(b) is caring for a family member who has been advised by a healthcare provider to quarantine due to COVID-19; or

(c) is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.

Rate of Pay (use regular paid sick leave formula):

The payment amount for properly taken covid-related paid sick leave is calculated the same as California’s regular paid sick leave under Labor Code Section 246.  Leave is to be paid at the regular rate during the applicable pay period taken (or for exempt employees, at their typical pay).  Part-time employees receive pro-rated pay based on their regular schedule.  Employees with variable schedules receive leave based on their average hours worked in the past (up to 6 months).  The $511/day cap remains, with the aggregate payment capped at $5,110.

Retroactive Payments (upon verbal or written request):

Upon the written or verbal request of an employee, the employer must provide retroactive payments to any employee who took Covid-related leave for a covered reason during anytime between January 1, 2022 and February 19, 2022.  Such retroactive payment has to be paid on or before the payday for the next full pay period after the oral or written request is made.  Employers that have provided Covid-related leave for reasons covered by the new law in amounts equal to, or greater than, what the law requires can take credit for previously provided leave since January 1, 2022, and such leave time should be reflected on the wage statements for the applicable employees.

Note that if the employee is requesting retroactive pay for leave that is available only if the employee or qualifying family member was positive for COVID-19, an employer may request documentation. Such documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

No Current Tax Relief:

Unlike the 2021 law, there are no offsetting tax credits available to help alleviate employers’ burden.  Although it is possible there will be some relief through various tax credits and additional funding for small business grants in the future, there are no guarantees at this time.

Interaction with Other Leave Laws:

Significantly, employers cannot require any other type of leave to be used instead of, or before, the Covid-related paid sick leave provided under the new 2022 law.  For instance, the Covid-related paid sick leave provided under the new 2022 law is in addition to the paid sick leave that employees are entitled to under California’s Healthy Workplaces, Healthy Families Act set forth in Labor Code 246.  Similarly, an employer cannot require employees to exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide earnings continuation (or exclusion leave) under the Cal/OSHA Emergency Temporary Standards (ETS).

The new California COVID-19 supplemental paid sick leave law leaves in place employers’ obligation to comply with all applicable local paid sick leave requirements, such as those in Los Angeles (City and County), Long Beach, and Oakland.  But if, for example, an employer provides a full-time covered employee with 40 hours of COVID‑19-related supplemental paid sick leave pursuant to a local ordinance, then those “local” 40 hours would count towards the employer’s obligations under the new 2022 COVID-19 paid leave law.  This is true so long as the leave provided is for a reason listed under the 2022 COVID-19 paid sick leave law and the “local” sick leave pay provided is at least at the same rate of pay as required by the new 2022 COVID-19 supplemental paid sick leave law.

Conclusion:

Employers would be wise to implement internal measures to track the reason for employees’ sick leave and how much sick leave the employees have taken under each of the two available “leave banks.”  It is very likely that there will be many questions regarding how employers are to account for the various reasons for leave under the two different categories.  Instead of guessing (and potentially being wrong), employers should consult with knowledgeable legal counsel to assess each specific situation and stay abreast of all updates from the California Labor Commissioner.