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California Likely to Implement New Covid Sick Pay – Retroactively

California Likely to Implement New Covid Sick Pay – Retroactively

On January 25, 2022, Governor Newson announced that a “framework” for an agreement to reactivate California’s COVID-19 Supplemental Paid Sick Leave had been reached.  While no law is yet in effect, California employers should assume this agreement will become law soon and prepare accordingly to re-institute supplemental paid sick leave for their California employees.

California’s COVID-19 Response

Starting on April 16, 2020, California law required employers to provide up to 80 hours of COVID sick leave for food sector workers who could not work due to COVID-19 illness (either their own or that of a family member).  California extended its COVID sick leave to non-food sector workers of employers with 500 or more employees starting on September 19, 2020.  Both of these COVID sick leave laws expired on December 31, 2020.

However, given the continued spread of COVID throughout the state, California enacted another law in March 2021 which provided an additional 80 hours of COVID sick leave to employees.  This time, the law covered employers with 26 or more employees.  The new law applied retroactively from January 1, 2021 through September 30, 2021.

Since that time, California has not had any sick pay laws in effect specific to COVID (employers were and are still obligated to provide employees with sick leave under Labor Code section 246).

With the recent appearance of the Omicron variant, COVID has once again begun spreading quickly and affecting California employees.  It has been estimated that the number of Californians not working due to their or their family members’ COVID-19 illness has increased by as much as 320 percent in the last month.  In response, labor unions urged the California Legislature to reinstate the supplemental paid sick leave law for employees.  Employer organizations, including the Cal Chamber, urged that a new sick leave law must have “reasonable parameters” that do not overly burden already-struggling businesses.

California’s New Supplemental Paid Sick Leave Proposal

In response, on January 25, Governor Newsom, along with Senate President pro Tempore Toni G. Atkins and Assembly Speaker Anthony Rendon, announced that they “reached an agreement on a framework” to ensure California employees have continued access to supplemental COVID-19 paid sick leave through September 30, 2022.  Below are some of the key features of the new COVID sick leave agreement:

  1. The law will apply to employers with 26 or more employees. This is similar to the 2021 COVID sick leave law.
  2. Full-time employees will be entitled to 40 hours of paid leave due to COVID-19, and an additional 40 hours of paid leave upon showing proof that they (or their family member) has tested positive for the COVID-19 virus. Under the 2021 COVID sick leave, full time-employees were entitled to up to 80 hours of supplemental paid sick leave.  The framework agreement provides that employers will have to pay for the test(s), but it is unclear whether this covers tests for the employee only, or includes testing for their family members.

Full details on what the law will require are not yet available as legislation has not yet been passed.  However, it is expected to be “fast-tracked” and employers should be prepared when it is.  California employers should consult with experienced employment attorneys to ensure that they are complying with the ever-changing requirements relating to COVID, including not just the new sick pay rules, but Cal-OSHA’s GISO 3250 and the California Department of Public Health’s latest isolation guidelines.

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