New COVID Supplement Paid Sick Leave Coming in Assembly Bill 84

As part of the “early action” budget items, Assembly Bill 84 was amended the afternoon of February 2 for a vote expected next week on the Floors of the Senate and Assembly. AB 84 is authored by the Assembly Committee on Budget and would enact supplemental paid sick leave in this state.

Section 1 of the bill adds Labor Code Section 248.6 to provide definitions for the terms “covered employee,” “COVID-19 supplemental paid sick leave,” “employer,” “family member,” “firefighter.

An employer (who employs more than 25 employees) is required to provide COVID-19 supplemental paid sick leave to each covered employee if that covered employee is unable to work or telework due to:

• Being subject to a quarantine or isolation period related to COVID-19.

• Being advised by a health care provider to isolate or quarantine due to COVID-19.

• Attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.

• Experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.

• • For each vaccination or vaccine booster, an employer may limit the total COVID-19 supplemental paid sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

• Experiencing symptoms of COVID-19 and seeking a medical diagnosis.

• Caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.

• Caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

A covered employee is entitled to 40 hours of COVID-19 supplemental paid sick leave if the covered employee’s employer considers the covered employee to work full time, or if the covered employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee took COVID-19 supplemental paid sick leave.

There are detailed rules if the covered employee does not satisfy the criteria in the above paragraph.

However, a covered employee is entitled to additional COVID-19 supplemental paid sick leave in an amount not to exceed that which the covered employee was entitled to if the covered employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19.

If the employee tested positive, an employer may require the employee to submit to a diagnostic test on or after the fifth day after the test was taken and provide documentation of those results, at no cost to the employee.

If the employee requests to use additional leave pursuant 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.

Nonetheless, the employer has no obligation to provide additional COVID-19 supplemental paid sick leave for an employee who refuses to provide documentation of the results of the test upon the request of the employer.

Note that the employee does not need to exhaust the leave to which they are entitled before using the additional leave provided for when testing positive.

This section does not limit an employer’s duties to comply with the Cal-OSHA COVID-19 Emergency Temporary Standards or the Cal-OSHA Aerosol Transmissible Diseases Standard.

The total maximum amount of COVID-19 supplemental paid sick leave a covered employee is entitled to cannot exceed 80 hours for the period between January 1, 2022, and September 30, 2022. The total number of hours of COVID-19 supplemental paid sick leave to which a covered employee is entitled is in addition to any paid sick leave that may be available to the covered employee.

In addition, a covered employee may determine how many hours of COVID-19 supplemental paid sick leave to use, up to the total number of hours to which the covered employee is entitled, and the employer is required to 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.

Each hour of COVID-19 supplemental paid sick leave is compensated for nonexempt covered employees calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek. In addition, COVID-19 supplemental paid sick leave for exempt employees is calculated in the same manner as the employer calculates wages for other forms of paid leave time.

An employer cannot be required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave taken by the covered employee unless federal legislation is enacted that increases these amounts beyond the amounts that were included in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (Public Law 116-127), in which case the new federal dollar amounts apply.

An employer is prohibited from requiring a covered employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the covered employee before the covered employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.

Moreover, an employer is prohibited from requiring a covered employee to first exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide paid leave for reasons related to COVID-19 under any Cal-OSHA COVID-19 Emergency Temporary Standards or the Cal-OSHA Aerosol Transmissible Diseases Standard.

If an employer pays a covered employee another supplemental benefit for leave taken on or after January 1, 2022, that compensates the covered employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the covered employee is entitled, then the employer may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide to the covered employee.

In addition to other remedies as may be provided, the Labor Commissioner enforces this section as if COVID-19 supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave.” COVID-19 supplemental paid sick leave is required to be set forth separately from paid sick days. The employer is required to 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 Labor Commissioner is required to make publicly available a model notice. If an employer’s covered employees do not frequent a workplace, the employer may satisfy the notice requirement by disseminating notice through electronic means.

The requirement to provide COVID-19 supplemental paid sick leave take effect 10 days after the date of enactment of this bill, at which time the requirements apply retroactively to January 1, 2022. An employer may require a covered employee to provide documentation of a positive COVID-19 diagnostic test during the relevant period if an employee requests retroactive payment of the COVID-19 supplemental paid sick leave.

There are also detailed rules for retroactive payments for leave take between January 1, 2022 and the effective date of this bill.

The requirement to provide COVID-19 supplemental paid sick leave remains in effect through September 30, 2022, except that a covered employee taking COVID-19 supplemental paid sick leave at the time of the expiration of this section is permitted to take the full amount of COVID-19 supplemental paid sick leave to which the covered employee otherwise would have been entitled.

Section 2 of the bill adds Labor Code Section 248.7 to provide COVID-19 supplemental paid sick leave” for those providing in-home supportive services to an eligible recipient.

Section 3 of the bill appropriates $100,000 in General Fund monies to the Labor Commissioner to implement the provisions related to the COVID-19 supplemental paid sick leave.

Section 4 of the bill provides that AB 84 is related to the Budget Bill and takes effect immediately.