California Reinstitutes Paid COVID Leave

Legal Alert

February 10, 2022

Coronavirus COVID-19 Caution Road Side Sign

At the same time that it is lifting statewide mask mandates (although local mandates may remain in place), California has reinstituted paid COVID leave requirements that had expired on September 30, 2021.

The new law –Senate Bill 114 – was signed by Governor Newsom on February 9, 2022. The new law appears as Labor Code section 248.6, and reestablishes the COVID paid supplemental leave requirement for employers with more than 25 employees. The new law is retroactive to January 1, 2022, and goes into effect immediately, although an employer’s obligation to provide the new paid leave does not begin until February 19, 2022. The new law expires September 30, 2022.

The law provides for up to a total of 80 hours of paid leave for an employee who is unable to work or telework for a variety of COVID-related circumstances, including matters affecting the employee, personally, as well as an employee’s “family member.” Family member is defined by reference to California Labor Code 245.5, and includes: child (biological, adopted, foster, stepchild, legal ward, someone to whom the employee is ‘in loco parentis,’ and in all cases regardless of age or dependency status); parent (biological, adoptive, foster, stepparent, or legal guardian, and whether the employee’s or the employee’s spouse or registered domestic partner); spouse; registered domestic partner; grandparent; grandchild; and, sibling.

For employees receiving a vaccination or booster, the new law permits the employer to limit the total amount of leave to 3 days or 24 work hours, unless the employee produces verification from a health care provider that the employee or family member is continuing to experience symptoms from the vaccination or booster.

In the case of leave requested due to a positive COVID test, the employer is permitted to require documentation of the positive test result and to withhold paid leave for employees who do not provide documentation. For an employee who tests positive, the employer may require the employee to take another test 5 days later, and provide the results of that test.

The employer is required to provide written notice – either in the employee’s wage statement or separate writing provided on the pay date – of the amount of paid supplemental leave used through the date of the notice.

Paid supplemental sick leave is to be compensated based on the employee’s highest rate of pay of four different calculation methods: (1) regular rate for the workweek in which the employee uses leave; (2) the average rate over the 90 days prior to leave; (3) state minimum wage; and, (4) local minimum wage. In all events, paid supplemental COVID leave is capped at $511.00 per day.

If you have any questions regarding California’s renewed COVID supplemental paid leave requirements, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.