California COVID-19 supplemental paid sick leave is a zombie that won’t go away. Even as the pandemic seems to be waning, California’s legislature has recently resurrected a COVID-19 supplemental paid sick leave law (“SPSL”) (readers of this blog may recall that the State had passed a similar law in 2021; that law, however, lapsed in September 2021). California Gov. Newsom is bound to sign this law any day now.
In anticipation, here is a summary of key items that employers must be cognizant about:
- When does the law go into effect? 10 days after Gov. Newsom signs it. Based on published reports, we believe that Gov. Newsom will sign the law this week—or no later than next week.
- Which employers does the law apply to? Employers with 25 or more employees.
- What will the law require employers to do? A few things, but most significantly, it requires employers to pay up to 80 hours of COVID-19-dedicated paid sick leave to employees in these circumstances:
- Up to 40 hours if the employee or an employee’s family member tests positive for COVID-19. (Happily, however, an employer may require evidence of a positive COVID-19 test in either case before disbursing COVID-19 paid sick leave.)
- Up to 40 hours if the employee is ordered by a healthcare provider to isolate or quarantine due to COVID-19; the employee is subject to a quarantine or isolation period for COVID-19 as provided by the California Department of Public Health, the CDC, or any local public health authority; the employee is experiencing COVID-19 symptoms; the employee is caring for a family remember who has been advised to isolate or quarantine due to COVID-19; or if the employee has to care for a child whose school or place of care is closed due to COVID-19.
- Up to 3 days (or 24 hours) of pay when the employee or an employee’s family member experiences side effects of COVID-19 vaccine or booster (caveat: this time period may be extended upon a health provider’s note); or to attend a vaccine appointment (or for the employee to take a family member to a vaccine appointment).
- The law also requires employers to: (1) indicate on an employee’s paystub how much SPSL the employee has used through the applicable pay period; and (2) post an SPSL notice, once the California Labor Commissioner has developed a model notice for distribution (this notice will be published in the upcoming days).
- How is the SPSL rate of pay calculated? The answer, as is often the case in law, is that it depends. That said, as rough guidelines, the SPSL provides that non-exempt employees should be paid SPSL at the employee’s regular rate of pay for the workweek in which the employee uses the sick time. For exempt employees, SPSL provides that the SPSL rate should be determined in the same manner that an employer calculates wages for other forms of paid leave.
- How does this SPSL interact with Cal/OSHA’s exclusionary-pay provisions for employees who either test positive for COVID-19 due to a work-related contact or otherwise have had close contact with a COVID-19 positive employee? Good question. The answer is two-fold. First, if any employee is excluded from work under the Cal/OSHA regulations, the employer must continue to pay that employee his or her wages for the entire duration of that exclusionary period—even if that employee is excluded from work for more than an 80 hours. Second, an employer cannot require an employee to use an employee’s SPSL before receiving exclusionary pay under the Cal/OSHA regulations.
- What time period does this law apply to? Once effective, the law has retroactive effect to January 1, 2022, and expires September 30, 2022. This means that if any employee has been (or will be) unable to work due to a COVID-19 qualifying reason mentioned above, that employee must receive SPSL for absences occurring between January 1, 2022, and September 30, 2022.
If you need assistance once this new law goes into effect, please contact us at info@mnklawyers.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
