All Employers with CA Employees
February 19, 2022
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On February 19, 2022, California’s reenacted COVID-19 paid sick leave law will go into effect. The law has retroactive effect to January 1, 2022 and lasts until September 30, 2022. Employers with more than 25 employees are required to comply with the law. Employers will be required to notify their employees of the new law. A model notice is expected to be issued by February 16, 2022.
How much leave can employees take?
The law divides paid leave into two categories. The first is for when the employee tests positive or needs to take care of a family member who tests positive for COVID-19. Family members include spouses, children, parents, siblings, grandchildren, and grandparents. The second category is for employees who are:
- Quarantining, or caring for a family member who is quarantining, because of a state or local public health order or health care provider recommendation
- Receiving their own COVID-19 vaccination or booster shot
- Accompanying a family member to a COVID-19 vaccine or booster shot appointment
- Feeling symptoms of COVID-19, or caring for a member who has COVID-19 symptoms, while awaiting diagnosis from a health care provider
- Caring for a child when a school or daycare is closed because of COVID-19
Full-time employees are entitled to up to 80 hours of paid leave (40 hours per category). Part-time employees receive the total number of hours they are typically scheduled to work over one week (one week for each category). Variable hour employees who have worked at least six months receive seven times the average number of hours they worked each day in the six months preceding their leave. Variable hour employees that have worked between 8 days and 6 months are entitled to seven times the hours over the entire period of work. If they have worked seven days or less, they receive the total number of hours worked. As with full and part-time employees, variable hour employees earn these hours per category of leave.
Employees determine how much leave they need to use. Employers can limit employee leave if the employee is on leave because of a positive test but refuses to provide documentation. Employers can also limit leave to three days or 24 hours for each vaccine or booster dose, unless the employee’s health care provider verifies that side effect symptoms are still present.
How does the law work with an employer’s current paid sick leave policy?
COVID-19 paid sick leave must be provided in addition to any employer paid sick leave policy. The only offset available is if employers had to provide COVID-19 paid sick leave under another federal or local law in effect on or after January 1, 2022, assuming the leave was for a permitted reason listed above. Employers also cannot require employees to use their COVID-19 paid sick leave accrual before using any other COVID-19 related leave. Supplemental paid sick leave is separate from and cannot be used as exclusion pay under the Cal/OSHA emergency temporary standard.
How do employers calculate the rate of pay?
Employers have a few options to choose from when calculating rate of pay. For nonexempt employees, employers can calculate the regular rate of pay by choosing one of the following:
- Using the same method as the regular rate of pay for the workweek when the nonexempt employee uses paid sick time, regardless of whether the employee works overtime that week
- Dividing the employee’s total wages, except for overtime, by their total non-overtime hours worked in the previous 90 days’ full pay periods
- For nonexempt employees that earn commission, piece rate, or another form of payment, total wages (overtime excluded) are divided by all hours
Exempt employee rate of pay is calculated the same way the employer calculates wages for other types of paid leave. Similar to the 2021 law, paid leave is capped at $511 per day and $5,110 in the aggregate. Other paid leave can be used to cover the employee’s full compensation. Employee paychecks must show the amount of COVID-19 paid sick leave they have used, not the amount they have remaining.
While many of the law’s provisions mirror those of 2021’s COVID-19 paid sick leave, the laws are not identical. Employers should look for updated FAQs for further guidance once available.
- Review AB 84 here.
- Update supplemental paid sick leave policies.
- Distribute the required notice when available.
- Have payroll processes updated to reflect new wage statement requirement.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
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