CA LEGISLATIVE UPDATE: EXTENSION OF COVID-19 SUPPLEMENTAL PAID SICK LEAVE

As we recently reported, California Governor Gavin Newsom and lawmakers agreed to extend last year’s now-expired COVID-19 Supplemental Paid Sick Leave policy which provided up to 80 hours of COVID-related paid leave.  Although there had been speculation as to the framework, we now have the firm details as proposed by Assembly Bill 84 in the form of a budget trailer bill, which would take effect 10 days from when it is signed and retroactively apply back to January 1, 2022. 

The following are some highlights of AB 84’s proposals:

• Reestablishes the COVID-19 supplemental paid sick leave for employers who have more than 25 employees.
• Reestablishes the specifications that a covered employee is entitled to COVID-19 supplemental paid sick leave if the employee is unable to work or telework because the employee is:
• Subject to quarantine or isolation related to COVID-19, as defined,
• Advised by a health care provider to self-quarantine due to concerns related to COVID-19,
• Attending an appointment to receive a COVID-19 vaccine or a vaccine booster,
• Experiencing symptoms related to a COVID-19 vaccine or a vaccine booster that prevents the employee from being able to work,
• Experiencing COVID-19 symptoms, and is seeking a medical diagnosis,
• Caring for a family member, as defined, who is subject to quarantine or isolation as specified above,
• Caring for a child, as defined, whose school or place of care is closed due to COVID-19.

Provides up to one week or 40 hours of COVID-19 supplemental leave to eligible employees covered above.

• Adds that a covered employee is also entitled to COVID-19 supplemental paid sick leave if the employee is unable to work or telework because the employee is: 
• Attending appointment to receive a COVID-19 vaccine or a vaccine booster for the employee’s family member, or,
• Caring for a family member who has symptoms from a COVID-19 vaccine or a vaccine booster.

Provides up to one week or 40 hours of COVID-19 supplemental leave to eligible employees covered above.

• Adds that for each vaccination or vaccine booster, an employer may limit the total COVID-19 supplemental paid sick leave for symptoms to 3 days or 24 hours unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or a vaccine booster.
• Entitles a covered employee, in addition to the COVID-19 supplemental paid sick leave described above, to take up to 40 more hours of COVID-19 supplemental paid sick leave if the covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.
• Specifies that the employer has no obligation to provide additional COVID-19 supplemental paid sick leave if the employee refuses to provide documentation of a test result.
• States that the employee is not required to exhaust the initial flexible 40 hours of COVID-19 supplemental paid sick leave before accessing the 40 hours additionally provided as a result of a positive COVID-19 test.
• States that the employer shall 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 described in Labor Code Section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages. The employer must list zero (0) hours used if a worker has not used any COVID-19 supplemental paid sick leave. This requirement is not enforceable until the full pay period following the effective date of the law.
• Specifies that the total number of hours under COVID-19 supplemental paid sick leave is in addition to any paid sick leave that may be available under existing law.
• Authorizes the employee to determine how many hours of COVID-19 supplemental paid sick leave to use, up to the total number of hours provided under the section and specifies that the employers shall make the supplemental sick leave available for immediate use by the employee upon request.
• Specifies that each hour of COVID-19 supplemental paid sick leave for nonexempt employees shall be compensated based on the highest pay rate equal to the following: (1) calculated in the same manner as the regular rate of pay for the workweek in which the employee uses COVID-19 supplemental paid sick leave, (2) calculated by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay period of the prior 90 days worked, (3) state minimum wage, or (4) local minimum wage. For exempt employees, the COVID-19 supplemental paid sick leave shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
• Specifies that employees will be compensated based on regular rate of pay pursuant to existing law or collective bargaining agreement. The compensation shall not exceed $511 per day or $5,110 in total, unless federal legislation is enacted to increase these amounts.
• Specifies that an employer shall not require a covered employee to use other paid leave or unpaid leave before the employee uses COVID-19 supplemental paid sick leave or in lieu of such leave.
• Authorizes an employer to count the hours of other paid leave provided to employees on or after January 1, 2022, for the COVID-19 related reasons, as specified earlier, towards the number of hours required under COVID-19 supplemental paid sick leave. In addition, the bill authorizes the employer to also include leave provided to any federal or local law for the same purposes of COVID-19 that became effective on or after January 1, 2022.
• Requires the Labor Commissioner by seven days after this bill is effective to make publicly available a model notice for employers to display a poster regarding COVID-19 supplemental paid sick leave. A hiring entity may satisfy this requirement for workers who do not frequent a workplace by disseminating notice through electronic means, such as by electronic mail.
• Requires the employer to provide retroactive payment to an employee that took unpaid leave for COVID-19-related reasons, as specified earlier, upon request of the employee. This retroactive payment is in addition to the COVID-19 food sector supplemental paid sick leave, or the COVID-19 paid sick leave as provided under existing law. The bill adds that the employer may require the covered employee to provide documentation of positive test during the retroactive time when employee seeking retroactive pay.
• Adds that a covered employee can request credit for sick leave taken prior to legislation within the retroactive period, if COVID-19 related, as allowable above.
• Specifies that the COVID-19 supplemental paid sick leave shall remain in effect through September 30, 2022, and specifies that covered employees taking COVID-19 supplemental paid sick leave at the time of expiration may take up to the full amount of COVID-19 supplemental paid sick leave provided in this section.

We will keep you updated when the bill is signed and put into law.  In the meantime, contact McKague Rosasco LLP with any questions on this new legislation.