As discussed in our last alert, the Governor and California Legislature agreed to provide additional supplemental paid sick leave to California workers. Now a bill effectuating that leave has been released. Assembly Bill 84, while still pending in the legislature, will likely pass quickly and require employers of 26 or more employees to provide up to 80 hours of supplemental paid sick leave. When the Bill is passed, which is a near foregone conclusion, it will require employers to begin providing the leave 10 days after approved. We have put together a list of FAQs below to help you prepare for this impending requirement.

Which employers are covered?

Employers of 26 or more employees and who have at least one employee in the state of California will be required to provide this new leave.

Which employees are entitled to the leave?

All employees of the covered employer, both full time and part time are entitled to the leave. There is no length of service requirement for an employee to be eligible.

When can an employee take leave?

The entitlement will apply retroactively back to January 1, 2022, and prospectively until September 30, 2022. That means if an employee has already taken a leave that would have been covered as described below they can apply this new entitlement to be paid for that leave. It is important to note that employers cannot unilaterally apply this leave retroactively, the employee must request that the employer do so. In the case where an employee took a prior leave which was paid, at the same or higher amount than they would have been paid under this supplemental leave and the employee requests retroactive application, the employee will be credited back the leave they previously used. For example, if an employee took 40 hours off in January for one of the covered reasons below and they used sick leave to be paid for that time, that employee can choose to use this new supplemental leave and will be credited back the sick leave hours they already used.

If an employee uses the leave retroactively, then they must be paid the corresponding amount on the payday after the next full pay period.

Additionally, in the event the employee has requested leave prior to September 30, 2022, they can remain on leave even if the leave extends past that date.

What are the covered reasons for leave?

Employees are entitled to use this supplemental leave for the following reasons:

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 State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
3. 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.
4. The covered employee is experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. 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.
7. 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.

How much leave do employees get?

A full-time covered employee is automatically entitled to 40 hours of leave for the reasons detailed above. A part-time covered employee is entitled to a proportionate number of hours of supplemental leave based on their weekly schedule. If the employee works a variable number of hours then the calculation depends on how long they have been with the company, but will generally be a weekly average of their hours.

Both full and part-time employees are entitled to an additional amount of time, equal to their allotment for the reasons detailed above, if the employee or family member for whom the employee is caring for tests positive for COVID-19. For instance, full-time employees are entitled to an additional 40 hours. If the employee tested positive, then the employer may require the employee to submit to a COVID-19 test on the fifth day after the initial positive test and provide documentation of the results. If the employee’s family member tests positive, then the employer may request documentation of those results. The Bill is silent on what documentation will suffice, this is of greater concern if the employee or family member is using an at home test. We expect additional information to be released on this requirement prior to its implementation.

If an employee refuses to provide the test results then the employer has no obligation to provide the additional leave allotment.

What rate to employees receive for supplemental sick hours?

For nonexempt employees, the rate of pay is either (1) their regular rate of pay (which is not necessarily the same as their base hourly rate), or (2) can be calculated by dividing the employees total wages, not including overtime, by the employees non-overtime hours in the full pay periods occurring in the 90 days prior to taking the leave.

For exempt employees, the leave should be paid at the same rate as the employer calculates wages for other forms of paid leave.

There is a cap of $511 per day and $5,110 total. So if the calculations above yield a higher amount, employers can cap it at the aforementioned amounts. If an employee hits the cap, they can elect to use other forms of paid leave so they can receive their full wages while on leave.

Can employers require employees to use supplemental leave instead of paying exclusion pay?

No. Unlike the previous supplemental sick leave requirement, employers cannot require that employees first exhaust this leave before being entitled to exclusion pay under the Cal/OSHA Emergency Temporary Standards. As a reminder, subject to some exceptions, employees are entitled to their regular rate of pay when they are sent home for an exposure to COVID-19 at the workplace. This effectively means that this new supplemental sick pay will only apply when an employer can show that the employee contracted COVID-19 or was exposed outside of work.

Are there notice requirements?

Employers must list the amount of supplemental leave an employee has used on their wage statement or a separate writing provided with the employee’s wage statements. This is different from the previous requirement which required employers to list the amount of leave available on the paystub or separate writing. For instance, under the new requirements, employers should list zero hours on the paystub if an employee has not used any COVID-19 supplemental paid sick leave.

Employers must also post a notice to be created by the Labor Commissioner about this new benefit. If an employer’s covered employees work remotely, the employer can send out this notice through electronic means, like e-mail.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the Cal/OSHA Emergency Temporary Standards and help businesses comply with federal, state, and county requirements. Stradling also has resources to ensure you are in compliance will all employment related laws in California. We encourage you to reach out if you want to make sure you are in compliance with any applicable requirements.