New for 2022: More COVID-19 Supplemental Paid Sick Leave for California Employees

What are the reasons an employee can take 2022 COVID-19 Supplemental Paid Sick Leave?

An employer shall provide COVID-19 Supplemental Paid Sick Leave to each covered employee if that covered employee is unable to work or telework due to any of the following reasons:

1. Quarantine/Isolation:
   1. The covered employee 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 (CDPH), the federal Centers for Disease Control and Prevention (CDC) or a local public health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 Supplemental Paid Sick Leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period.
   2. The covered employee has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
   3. The covered employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine, as described in the items above.
2. Vaccination:
   1. The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
   2. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework.
   3. For each vaccination or booster, an employer may limit the total COVID-19 Supplemental Paid Sick Leave to three days or 24 hours unless the employee provides verification from a healthcare provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or booster. The three-day or 24-hour limitation applied to each vaccine or vaccine booster includes the time used to get the vaccine or vaccine booster.
3. Symptoms:
   1. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. Childcare:
   1. The covered 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.

What is a “child” or “family member”?

For purposes of this leave:

“Child” means a biological, adopted, or foster child, stepchild, legal ward or a child to whom the employee stands in loco parentis regardless of age or dependency status of the child.

“Family member” means any of the following:

• A child;
• A biological, adoptive, or foster parent, stepparent or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child;
• A spouse;
• A registered domestic partner;
• A grandparent;
• A grandchild; or
• A sibling.

How much paid sick leave are California employees entitled to take under the new 2022 COVID-19 Supplemental Paid Sick Leave?

The amount provided depends on whether the employee is full-time, part-time or a firefighter, and whether the employee provides proof of COVID-19 for themselves or a family member.

INITIAL BANK OF PAID SICK LEAVE: NO PROOF OF POSITIVE COVID-19 TEST REQUIRED

1. Employees who (a) are considered by the employer to be “full time” or (b) worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took the COVID-19 Supplemental Paid Sick Leave receive:
   1. Up to 40 hours of flexible paid leave for full-time workers who are sick or caring for an ill loved one.
2. Employees who are part-time/do not work on average at least 40 hours per week (in the two weeks before taking the leave) and are not firefighters receive the following:
   1. If the covered employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work for the employer over one week.
   2. If the covered employee works a variable number of hours, seven times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. (If the covered 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 covered employee has worked for the employer.)
   3. If the covered 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 covered employee has worked for that employer.
3. Employees who are firefighters scheduled to work more than 40 hours for the employer in one workweek preceding the date the covered employee took COVID-19 Supplemental Paid Sick Leave receive an amount equal to the total number of hours that the covered employee was scheduled to work for the employer in that workweek.

ADDITIONAL BANK OF PAID SICK LEAVE: PROOF OF POSITIVE COVID-19 TEST REQUIRED

In addition to the amount of paid sick leave noted above, the employee is entitled to additional COVID-19 Supplemental Paid Sick Leave in an amount not to exceed that which the covered employee was entitled above, if the covered employee or a family member for whom the covered employee is providing care, tests positive for COVID-19. In other words, the employee may double their paid sick leave entitlement (for full-time employees, this means up to 80 hours total of paid sick leave).

To access this additional bank of COVID-19 Supplemental Paid Sick Leave, proof of COVID-19 is required as follows:

• If the employee tested positive for COVID-19, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the initial positive COVID-19 test was taken and provide documentation of those results. The employer shall make such a test available at no cost to the employee.
• If the employee requests to use this 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.

While the employer must provide the initial bank of paid sick leave without proof of COVID-19 (i.e., 40 hours for a full-time employee, less for a part-time employee), the employer has no obligation to provide this additional COVID-19 Supplemental Paid Sick Leave under this subparagraph for an employee who refuses to provide documentation of the results of the test noted above upon the request of the employer.

The employee does not need to exhaust the initial bank of leave to which they are entitled before using this additional leave.

Does the employee have to provide advance and/or written notice prior to taking COVID-19 Supplemental Paid Sick Leave?

For the first 40 hours (or first half of leave entitlement for non-full-time employees), the employer must make COVID-19 Supplemental Paid Sick Leave available for immediate use by the covered employee upon the oral or written request of the covered employee to the employer.

For use of the second half of leave entitlement (up to an additional 40 hours for full-time employees), additional documentation may be required by the employer; see the Q&A above for more details.

Can an employer require a covered employee to use their COVID-19 Supplemental Paid Sick Leave first, before using other paid leave banks or entitlements? Can an employer require a covered employee another type of leave (paid or unpaid) before using their COVID-19 Supplemental Paid Sick Leave?

Generally, no—the employee has the right to choose which type of leave(s) they use and in which order.

An employer must not require a covered employee to first exhaust their COVID-19 Supplemental Paid Sick Leave under this section before satisfying any requirement to provide paid leave for reasons related to COVID-19, such as under the Cal/OSHA COVID-19 Emergency Temporary Standard, including, but not limited to, Sections 3205 to 3205.4, inclusive, of Title 8 of the California Code of Regulations or the Cal/OSHA Aerosol Transmissible Diseases Standard at Section 5199 of Title 8 of the California Code of Regulations.

Note: This is different from the 2021 version of this COVID-19 Supplemental Paid Sick Leave that expired on September 30, 2021, which version provided: “in order to satisfy the requirement to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure under the Cal-OSHA COVID-19 Emergency Temporary Standards at Sections 3205 through 3205.4, inclusive, of Title 8 of the California Code of Regulations or the Cal-OSHA Aerosol Transmissible Diseases Standard at Section 5199 of Title 8 of the California Code of Regulations, an employer may require a covered employee to first exhaust their COVID-19 supplemental paid sick leave under this section.” (emphasis added)

In addition, under this 2022 version, an employer may not require a covered employee to use other paid or unpaid leave, paid time off or vacation time provided by the employer to the covered employee before that employee uses COVID-19 Supplemental Paid Sick Leave or in lieu thereof, except in certain circumstances in which the employer provides another supplemental benefit for leave for COVID-19, as prescribed.

Should the 2022 COVID-19 Supplemental Paid Sick Leave be displayed on the employee’s wage statement?

Yes, COVID-19 supplemental paid sick leave must be set forth on the wage statement, and it must be set forth separately from the regular California paid sick days.

Specifically, under the new law, the employer must 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 or in a separate writing provided on the designated pay date with the employee’s payment of wages. The employer must list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.

This wage statement requirement is not enforceable until the next full pay period following the date that this law takes effect.

What is the proper rate of pay to compensate an employee taking COVID-19 Supplemental Paid Sick Leave?

Each hour of COVID-19 Supplemental Paid Sick Leave must be compensated at a rate equal to the following, subject to a cap of $511 per day and $5,110 in the aggregate:

• For a non-exempt employee, either:
  • Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses the paid leave; or
  • 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; provided that, for non-exempt employees paid by piece rate, commission or other method that uses all hours to determine regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine the correct amount of leave.
• For exempt employees, calculated in the same manner as the employer calculates wages for other forms of paid leave time.
• For firefighters, each paid leave hour shall be compensated at the regular rate of pay to which the employee would be entitled as if the employee had been scheduled to work those hours, pursuant to existing law or an applicable collective bargaining agreement.

An employee may utilize other paid leave that is available to the employee to fully compensate the employee for leave taken, to the extent the time taken under this leave caps the employee below their full compensation rate. The caps stated above are subject to adjustment if the federal dollar caps applicable to the federal Families First Coronavirus Response Act are increased.

How does this 2022 COVID-19 Supplemental Paid Sick Leave interact with other paid sick leaves like California’s paid sick leave under Labor Code Section 246, local required paid sick leaves or employer-provided paid sick leaves intended for this purpose?

The 2022 COVID-19 Supplemental Paid Sick Leave is an additional paid leave, separate and in addition to California employer obligations to provide paid sick leave pursuant to Labor Code Section 246.

However, if an employer pays an employee another supplemental benefit for leave taken on or after January 1, 2022, that is payable for the reasons enumerated in this law and that compensates the employee at least as much as required under this law, then the employer may count the hours of those other paid benefits or leaves toward the total number of hours of COVID-19 Supplemental Paid Sick Leave that the employer is required to provide to an employee under this law, including paid leave provided by the employer pursuant to any federal or local law in effect or that may become effective on or after January 1, 2022.

How does the retroactive feature of this law work? Do employers have to automatically pay any amounts owed, or does the employee have to request it?

In sum, the employee must request the payment.

For any covered leave taken on or after January 1, 2022, but before the effective date of this law, if the employer did not compensate the employee in an amount equal or greater than the amount of compensation for COVID-19 Supplemental Paid Sick Leave to which the employee is entitled under the law, then upon the oral or written request of the employee, the employer shall provide the retroactive payment providing for such compensation on or before the payday for the next full pay period after the employee’s request.

For any such leave taken where the employee was compensated in an amount equal or greater to the amount the employee would have been entitled under the COVID-19 Supplemental Paid Sick Leave law, then upon oral or written 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 in the next wage statement.

What happens if an employee is in the middle of taking COVID-19 Supplemental Paid Sick Leave when it expires on September 30, 2022?

An employee taking this leave at the time of expiration of this law shall be permitted to take the full amount of the paid leave to which that employee would otherwise have been entitled to under the law.

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At the time of this article, the state has not yet issued any FAQs regarding further interpretation of the law; however, it is expected that further guidance will be forthcoming.

If you have any questions, please reach out to your McDermott Will & Emery lawyer.