In the past two years, California lawmakers have focused their efforts on resolving the negative effects of COVID-19 and its variants, placing primary responsibility on employers. Several laws were recently enacted that impact employers in the context of workers’ compensation, workplace safety, and particularly, paid sick leave. California’s paid sick leave laws are daunting. The laws have become increasingly complex with unclear requirements. The following is a summary of the major paid sick leave laws including some of the compliance issues:

Cal/OSHA Emergency Temporary Standards (ETS)

Cal/OSHA’s ETS significantly increased the obligations and monetary burdens on California employers as follows:

1. Cal/OSHA’s ETS does not have an employee threshold as did the federal OSHA ETS that was blocked by the U.S. Supreme Court in 2021. Whether an employer has one, 100, or 1,000 workers, all are covered
2. The ETS principal requirement is employers pay all salaries and benefits for the entire time employees are excluded from the workplace due to exposure to COVID-19 at work or are excluded because they contracted COVID-19 in the workplace.
3. Employers also have numerous other responsibilities including:

• • Implementing an effective written COVID-19 Prevention Program.
  • Providing effective training and instruction to employees.
  • Providing notification to public health departments of outbreaks.
  • Providing notification to employees of exposure and close contacts.
  • Requirements to offer COVID-19 testing after potential exposures.
  • Contact tracing cases at work, and making sure employees and others in the workplace are appropriately quarantined and/or maintaining physical distancing requirements if they have been exposed to COVID-19.
  • Providing free COVID-19 testing during paid working time to all symptomatic employees who are not fully vaccinated, regardless of work-related exposure.
  • Maintaining COVID-19 safety plans and training for employees.

Cal/OSHA Amended Emergency Temporary Standards (ETS)

Cal/OSHA’s ETS was amended in November 2021, effective in January 2022. While most of the provisions remain the same many of the ambiguous provisions remain unresolved. The key Changes to the Revised Cal/OSHA ETS:

1. The distinction between fully vaccinated and unvaccinated employees is eliminated for certain requirements.
2. COVID-19 Testing for Close Contacts: employers will need to provide COVID-19 tests at no cost to all employees regardless of their vaccination status if they are identified as a close contact with a COVID-19 positive case in the workplace.
3. Outbreak Testing for an “Exposed Group” of employees: employers must offer COVID-19 testing to all employees, including fully vaccinated employees, who are part of an “exposed group” (as defined by the Cal/OSHA ETS) during a COVID-19 outbreak.
4. Employer-Provided Information Regarding COVID-19-Related Benefits: employers must provide all employees identified as a “close contact” (as defined by the Cal/OSHA ETS) in the workplace with information about COVID-19-related benefits to which the employee may be entitled, including Cal/OSHA’s controversial exclusionary pay benefits.

SB 95 COVID-19: California’s 2021 Supplemental Paid Sick Leave Extension

The federal Families First Coronavirus Response Act (FFCRA) mandated COVID-19 emergency paid sick and paid family leave expired on December 31, 2020, and was not extended by Congress. SB 95 extended COVID-19 mandatory supplemental paid sick leave (2021 SPSL) in California. Although it expired on September 30, 2021, this California bill added up to an additional 80 hours of leave to be paid by employers with more than 25 employers and included persons who teleworked It also extended SPSL entitlements for reasons related to vaccinations and family care, placing a significant burden on a much broader range of employers than did the FFCRA emergency paid sick leave law.

COVID-19 Supplemental Paid Sick Leave Law (2022 SPSL)

The 2022 COVID-19 Supplemental Paid Sick Leave Law (2022 SPSL) took effect February 19, 2022, but is retroactive to January 1, 2022. The law requires employers to provide employees with up to 80 hours of paid sick leave related to COVID-19.

The Key Elements of the 2022 SPSL are as follows:

• Applies to: Employers with 26 or more full and/or part-time employees anywhere in the U.S. (do not count independent contractors).
• Does not apply to: Employers with 25 or fewer employees anywhere in the U.S.
• The law will be in effect: Through September 30, 2022.
• The 2022 Supp Paid Sick Leave Law (SPSL) law provides: Another 80 hours of paid sick leave, in addition to the Cal/OSHA Emergency Temporary Standard (ETS) Exclusion Pay requirement that applies to all employers regardless of size.
• Allows employees to use paid sick leave (SPSL) to: Care for family members. A family member is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.

Employees may use the hours of 2022 SPSL for a broad range of reasons:

• Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state, or local orders or guidance.
• Employee is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19.
• Employee or family member is attending an appointment to receive a COVID-19 vaccine or booster.
• Employee or family member is experiencing symptoms related to a COVID-19 vaccine or booster that prevents the employee from being able to work or telework.
• Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
• Employee is caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to self-quarantine or isolate by a health care professional.
• Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
• Employee tests positive, or is caring for a family member who tests positive for COVID-19.

Employers are not allowed to require employees to first use and exhaust their SPSL during periods the employee is entitled to exclusion pay under Cal/OSHA’s ETS.

The Healthy Family Act of 2014: California’s Mandatory Paid Sick Leave Law

Then there is also the California mandatory paid sick leave law, the Healthy Family Act of 2014. Under this statewide law, employers are required to provide paid sick leave to covered employees as follows:

• Covered employees include full-time, part-time, temporary, or seasonal workers who work in California for 30 or more days in a 12-month period for the same employer.
• Covered employees must accrue at least one hour of sick leave for every 30 hours worked.
• An employer may limit the amount of paid sick leave an employee can use in one year to 24 hours or three days.
• An employer must allow accrued unused paid sick leave to be carried over to the next year, but a cap on carryover hours of no less than 48 hours or six days is permitted.
• Lump-sum policies are not required to allow carryover

Some municipalities have enacted their own Paid Sick Leave Ordinances, requiring between three and nine mandatory paid sick days, depending on the location of the workplace.[1] Many of the local ordinances offer more generous benefits than the state law, but the accrual rates, caps, and carryover provisions are not all the same.

A Trifecta of Paid Sick Leave Laws

The three laws together, the Cal/OSHA ETS allowing for unlimited paid sick leave (think COVID “long haulers”) when employees are excluded due to exposure to COVID-19 in the workplace, the 2022 SPSL mandating up to another 80 paid hours of Supplemental Sick Leave for employees due to the need to attend to anything remotely related to COVID-19, along with the original statewide mandatory paid sick leave law, considered together have the potential for placing a huge financial burden on California employers.

There are no tax credits available under any of the three laws as there were previously under the FFCRA and the 2021 SPSL. The paid leave required under each law does not run concurrently. There is a reason the 2022 SPSL is entitled, “Supplemental”. Not to mention, the combination of the three leave allowances could well result in employees remaining away from the workplace for much longer periods of time, often leaving businesses understaffed in essential positions.

Further and perhaps most challenging, is how complicated the requirements have become, and how the 2022 SPSL legislation does not provide guidance on important issues relating to how the law interacts with the other two laws.

The information provided in this Blog is a synopsis. There are many more details that must be dealt with in order for employers to comply. For example, all three laws require employees be provided with specific notices and in addition, both the 2022 SPSL and the California mandatory paid sick leave law each requires separate notices be provided on employee pay stubs as to the number of hours used by the employee and the number of hours remaining available respectively under each statute. We are available to provide assistance.

For more information about these laws, please contact Laura P. Worsinger.

[1] In addition to California’s statewide Paid Sick Leave Law, at least seven California cities have enacted their own local version of the state’s Healthy Families Act (i.e. Berkeley, Emeryville, Los Angeles City, Oakland, San Diego, San Francisco, and Santa Monica).