February 6, 2023

Volume XIII, Number 37


February 06, 2023

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February 03, 2023

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California COVID Supplemental Sick Leave is Back

California COVID supplemental sick leave is back. After Governor Newsom and the State Legislature came to an agreement earlier this year for what the 2022 version of supplemental sick leave would look like, mirror bills (AB 84 and SB 114) in the State Assembly and Senate worked their way through the Legislature, and the law was signed by the Governor on February 9. The law will go into effect on February 19, 2022.

Similar to last year’s COVID supplemental sick leave, the law is retroactive to January 1, meaning an employee who took time off work for an eligible reason before February 19 will be able to request supplemental sick leave pay for that time. Supplemental sick leave will last through September 30, 2022.

There are key similarities and important differences between the 2021 law and the 2022 law.

A primary difference is that 2022 supplemental sick leave is made up of two categories of leave. The first category is 40 hours of leave for any COVID qualifying reason. This category is identical to the whole of the leave provided under the 2021 law. COVID qualifying reasons include: the employee is subject to quarantine or isolation, the employee is advised by a health care provider to isolate or quarantine, the employee or a family member has an appointment for or symptoms from a COVID vaccine or booster, the employee is experiencing symptoms of COVID, the employee is caring for a family member subject to quarantine or isolation, or the employee’s child’s school or place of care is closed due to COVID. An addition in the 2022 law is that an employer may limit the COVID supplemental sick leave for the employee or a family member attending an appointment for or experiencing symptoms from a COVID vaccine or booster to three days or 24 hours of paid leave unless the employee provides verification from a health care provider that more leave is required.

For employees who do not work full time, the amount of leave required under the 2022 law is calculated the same way as in the 2021 COVID supplemental leave law.

The second category of leave provided under the 2022 law is an additional 40 hours (or pro-rated amount for a part time employee) if the employee or a family member for whom the employee is providing care tests positive for COVID. For this category of leave, an employer may require the employee to submit a diagnostic test showing that the employee or the family member in their care tested positive. Such a test must be provided by the employer at no cost to the employee. The employee does not need to exhaust the first category of leave to take the leave provided by this category.

Importantly, the 2022 law differs from the 2021 leave because an employer cannot require an employee to exhaust their COVID supplemental sick leave when excluded from the workplace under any Cal-OSHA COVID-19 Emergency Temporary Standards. If there is a local COVID sick leave ordinance, an employer may count the leave provided under the state supplemental sick leave law toward the local ordinance.

An employer must provide notice, separately than on an employee’s paystub, to employees about the 2022 COVID supplemental sick leave through a physical or electronic notice. The Labor Commissioner will make a model notice available. An employer must also list how much COVID supplemental sick leave the employee has taken either on the paystub or a separate writing on the pay date. This is a change from the 2021 law, which required the employer to list the amount of leave the employee had remaining. Under the 2022 law, only listing the amount of leave taken is proper. As with the 2021 law, the supplemental sick leave must be a separate item on the paystub than regular paid sick leave.

© 2023 Foley & Lardner LLPNational Law Review, Volume XII, Number 45

About this Author

Sara Alexis Levine Abarbanel Litigation Attorney Foley & Lardner San Francisco, CA

Sara Abarbanel is an associate and litigation lawyer with Foley & Lardner LLP. She is a member of the firm’s Business Litigation & Dispute Resolution Practice.

Prior to joining Foley, Sara worked as a summer associate at Foley, in the California Attorney General's Executive Office, and in the California Governor's Office of Legal Affairs. In addition, while in law school, she was a graduate student instructor for Introduction to Real Estate and Urban Land Economics, Political and Agency Management Aspects of Public Policy, International and Global History since 1945, and a...

Krista M. Cabrera, Litigation Attorney, Foley Lardner Law Firm

Krista Cabrera is special counsel and a litigation attorney at Foley & Lardner LLP where she focuses her practice on employment litigation, counseling and training. As part of her litigation practice, Ms. Cabrera represents employers in discrimination, trade secret, wrongful termination, harassment, class action wage and hour matters, and other types of employment-related matters. She is a member of the firm’s Labor & Employment Practice.