California Extends COVID-19 Supplemental Paid Sick Leave

After a brief lapse, California reinstated the Covid-19 supplement paid sick leave laws. The following is a summary of the 2022 version of the leave program:

Who Is Covered by the Law:

• Employers who employ more than 25 employees
• Employees who are unable to work or telework for an employer because of any of the following reasons:
  • The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. (If the employee is subject to more than one of the foregoing, the employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.)
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for a family member, who is subject to an order or guidelines described above or who has been advised to self-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.

Amount of Leave Available:

• An employee is entitled to 40 hours of COVID-19 supplemental paid sick leave, if the employee satisfies either of the following criteria:
  • The employer considers the employee to work full time.
  • The employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.
• An employee who does not satisfy the above criteria is entitled to an amount of COVID-19 supplemental paid sick leave as follows:
  • If the employee has a normal weekly schedule, the total number of hours the employee is normally scheduled to work for the employer over one week.
  • If the employee works a variable number of hours, seven times the average number of hours the employee worked each day for the employer 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 shall 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.
• An employee is entitled to additional COVID-19 supplemental paid sick leave of up to 40 hours as calculated above if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19.
  • An employer may require the employee to submit to a diagnostic test on or after the fifth day after the above positive test. The employer shall 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 COVID-19 supplemental paid sick leave for an employee who refuses to provide documentation of the results of the test described above upon the request of the employer.
  • The employee does not need to exhaust the leave to which they are entitled before using the additional leave for a positive test.

Required Compensation:

Each hour of COVID-19 supplemental paid sick leave shall be compensated at a rate equal to the following:

• For nonexempt employees, by one of the following:
  • The regular rate of pay for the workweek in which the employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek.
  • An amount calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment.
    • 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, shall be divided by all hours, to determine the correct amount of COVID-19 supplemental paid sick leave under this subdivision
• For exempt employees the amount shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
• An employer shall not be required to pay more than $511 per day and $5,110 in the aggregate to an employee for COVID-19 supplemental paid sick leave taken by the employee unless the federal legislation is amended to increase the amounts.
• An employee who has reached the maximum amounts may choose to utilize other paid leave that is available to the employee in order to fully compensate the employee for leave taken.
• An employer may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the employee before the employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.
• If an employer pays an employee another supplemental benefit for leave taken on or after January 1, 2022, that is payable for the reasons listed above and that 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 to the employee.

Other Details to Know:

• The total maximum amount of COVID-19 supplemental paid sick leave an employee is entitled to pursuant to this section shall not exceed 80 hours for the period between January 1, 2022, and September 30, 2022.
• 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 otherwise be available to the employee.
• An employee may determine how many hours of COVID-19 supplemental paid sick leave to use, up to the total number of hours to which the employee is entitled.
• The employer shall make COVID-19 supplemental paid sick leave available for immediate use by the employee, upon request of the employee.
• An employer is not required to provide an employee more than the total number of hours of COVID-19 supplemental paid sick leave to which the employee is entitled.
• COVID-19 supplemental paid sick leave must be set forth on the employee’s itemized wage statement separately from other paid sick days. The employer shall list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.
• The requirement to provide COVID-19 supplemental paid sick leave shall apply retroactively to January 1, 2022.
  • For any such leave taken since January 1, 2022, if the employer did not compensate the covered employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered employee is entitled, then upon request of the employee, the employer shall provide the covered employee with a retroactive payment that provides for such compensation.
  • If the employer did compensate the covered employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered employee is entitled, then upon request of the employee, such employee should be credited for any leave hours used for COVID-specific leave purposes, and the employer should be credited for providing those hours as COVID-19 supplemental paid sick leave.
  • For any such retroactive payment, the number of hours of leave corresponding to the amount of the retroactive payment shall count towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide to the employee.
  • The retroactive payment must be paid on or before the payday for the next full pay period after the request of the employee and shall be noted on the wage statement.
  • An employer may require an employee to provide documentation of a positive COVID-19 diagnostic test during the retroactive period.

Contact us for a consultation regarding the new law.

Click to read the full text of the law: 2022 Covid-19 Supplemental Paid Sick Leave