The 12 Days of California Labor & Employment – Day 8 "Supplemental Paid Sick Leave for COVID Expiring"

In the spirit of the season, we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On this eighth day of the holidays, my labor and employment attorney gave to me: eight maids a milking and AB 152.

In 2020, California enacted a supplemental COVID-19 paid sick leave law (AB 1867), which applied to businesses with 500 or more employees nationally. It supplemented the Federal program and, in essence, guaranteed that any employee—regardless of the size of the employer—would receive paid sick leave if needed due to COVID-19.  

After the Federal program expired, California passed additional laws mandating COVID-19 Supplemental Paid Sick Leave within the state. This included SB 114, enacted in February 2022, which mandated supplemental paid sick leave for businesses employing 26 or more employees. SB 114 provided for COVID-19 supplemental paid sick leave for covered employees unable to work or telework due to certain reasons related to COVID-19, as specified, and entitled a covered employee to 40 hours of COVID-19 supplemental paid sick leave, as prescribed. It also entitled a covered employee 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. Thus, each qualified employee had two different banks of leave. 

However, SB 114 was set to expire on September 30, 2022. In response, the day before it expired, Governor Newsom signed into immediate effect AB 152, which extended the COVID-19 Supplemental Paid Sick Leave through December 31, 2022. Here are the important facts for requisite employers to take note of:

• It does not provide an additional leave bank. Thus, if an employee has already utilized their leave banks, AB 152 does not provide that same employee with additional leave.
• Employers may require employees to submit a second diagnostic test five or more days after the first positive test at no cost to the employee.
• A relief program for smaller employers was created. If an employer has between 26 and 49 employees, they may be eligible for a grant up to $50K.
• Employers may require proof of a positive COVID test and deny paid leave without documentation.
• If a qualified employee begins their sick leave in 2022, it may continue into 2023 and be covered. 
• It sunsets on December 31, 2022.

At this time, employers have twelve (12) days left to provide this type of leave for covered employees who cannot work or telework for these reasons:

• The employee is subject to a quarantine or isolation period as required under an order or guidance (e.g., State or local departments of Public Health, CDC).
• The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
• The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
• The 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.
• The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• The employee is caring for a family member subject to an isolation or quarantine order, guidance as described, or who has been advised to isolate or quarantine by a health care provider.
• 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.

It is recommended that employers continue with record keeping on COVID-19 sick leave as we do not know what 2023 will bring. An employee who has already exhausted the leave banks will need to use alternative leave, such as PTO, vacation, or sick time.