California Enacts New COVID-19 Sick Leave Law
The coronavirus pandemic continues to rage onwards, with the expansion of the Omicron variant and potential new variants on the horizon. The pandemic has had a profound impact on workplace culture, among other things, concerning sick days. Whereas employees in the past would have been likely to show up with a 102-degree fever just to avoid being ostracized, now a mistimed cough can send a worker straight home.
Employers around the country have struggled with balancing the desire for safety with the need to ensure the day’s business gets done and the day’s customers get served. Companies like Walmart have begun lifting mask restrictions and cutting voluntarily-imposed sick leave policies, deciding that it’s just about time to stop worrying about Covid. Ever the advocate for worker rights, California recently enacted a law designed to ensure that the safety of employees is not overlooked in favor of the need to push a few more units of company product.
On February 9, 2022, California Governor Gavin Newsom signed a law that requires large companies in California to grant employees supplemental sick leave. Starting February 19, 2022, California employers with more than 25 employees must start providing paid sick leave to covered employees unable to work or telework because of COVID-19 related reasons, including to care for a family member. The state enacted a similar law in 2021 to protect covered workers, but the new law differs in key respects.
Under the new law, covered employees are guaranteed 80 hours of supplemental paid sick leave. Those 80 hours are, however, divided up into two 40-hour batches or allotments. The first 40 hours of leave may be taken for an employee who is unable to work or telework because they:
- Are subject to quarantine
- Have been told by a healthcare professional to isolate
- Are experiencing COVID-19 symptoms
- Are caring for a family member subject to quarantine or isolation
- Are caring for a child whose school or place of care has been closed for COVID-19 reasons
Employees may also use up to 24 hours of that first 40 to get their vaccine, recover from vaccine-related side effects, or care for a family member experiencing vaccine side effects.
Employers may take an additional 40 hours of paid leave (the second batch) if they test positive for COVID-19, or to care for a family member who has tested positive. Employers can request documentation to prove positive test results initially and on day five after the initial positive test, although the employer must provide those tests free of charge.
The new law adds covered sick leave in addition to any regular paid sick leave already required under California law. Employers cannot require employees to use other paid or unpaid leave prior to relying on the COVID-related leave. The law guarantees full-time workers a maximum of 40 hours supplemental paid sick leave, while part-time workers are guaranteed a number of hours in line with their typical weekly schedule. For example, if an employee typically works 20 hours a week for a covered employer, they would be entitled to two batches of 20 hours.
This new law provides a substantial amount of time off for workers and could pose significant burdens on employers who have to pay for this leave and figure out how to manage their workforces with so many people on leave. Such concerns may be overblown, however. California labor and employment law attorney Richard Koss notes this extra leave, while available to all employees, will theoretically only be taken by a small percentage of employees as the incidents of COVID-19 continue to decrease. Koss also points to the small business exception in the law. “This extra leave only applies to employers with more than 25 employees,” says Koss, “so very small employers are exempt.” Koss notes that employers with more than five employees are already required to provide up to 12 weeks’ leave to employees who have worked for the employer for at least one year and have worked more than 1,250 house in the year under the California Family Rights Act.
As for employees, what should they do if they request leave under the new law but have their request denied by their employer? Attorney Koss explains, “the employee may file a complaint with the Labor Commissioner if they are denied leave or retaliated against for taking such leave.” Although this new law does not appear to create a separate right for the employee to bring a case in court, employees are generally protected from retaliation or unfair treatment in exercising their rights under California leave laws.