COVID-19: California Revives COVID-19 Sick Leave Benefits Retroactive to January 1, 2022 For Employers With 26 Or More Employees
Posted February 8, 2022

COVID-19 sick leave is back! On February 7, 2022, the California Legislature passed Assembly Bill 84 (“AB 84”). This bill requires employers with 26 or more employees to provide up to 80 hours of COVID-19 supplemental paid sick leave (“SPSL”) to covered employees for qualifying COVID-19 time taken off work between January 1, 2022 through September 30, 2022.

As further detailed below, AB 84’s framework provides for two banks of leave: (1) up to 40 hours of SPSL to covered employees for a number of specific COVID-19-related absences; and (2) up to an additional 40 hours for covered employees who can show proof that they have tested positive for COVID-19, or that they are caring for a family member that has tested positive for COVID-19. The bill can be viewed here.

As you will recall, the state previously enacted a COVID-19 California Supplemental Paid Sick Leave Law ("CSPSL"), which expired on September 30, 2021. Our prior legal update on this benefit can be found here. Although this new SPSL legislation contains many of the same requirements as its predecessor, and once again expands employers’ obligations to provide SPSL to covered employees impacted by COVID-19 in 2022, there are a number of notable changes. Below are the highlights of the new SPSL benefit.

When does AB 84 take effect?

AB 84 will become effective 10 days after the date on which Governor Newsom signs it into law. Once effective, the benefits provided by AB 84 are retroactive to January 1, 2022. This means that upon a written or oral request by a covered employee, employers are required to issue retroactive SPSL payments to employees who took a COVID-19 leave for a qualifying reason on or after January 1, 2022. That retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request of the covered employee.

When do AB 84 benefits end?

AB 84 benefits are set to expire on September 30, 2022, unless otherwise extended.

Who is a “covered employer” under AB 84?

Under AB 84, all employers with 26 or more employees must provide paid sick leave for qualifying COVID-19 related reasons.

Who is a “covered employee” under AB 84?

A covered employee under AB 84 is any employee who “is unable to work or telework” for any one of the qualifying uses listed in AB 84. This applies to both full and part-time employees, and there is no length of service requirement to be eligible for the SPSL entitlement.

What are the qualifying uses for SPSL under AB 84?

A covered employee is entitled to SPSL if they are unable to work or telework due to any of the following seven reasons:

1. The covered employee “is subject to a quarantine or isolation period related to COVID-19” as defined by an order or guidelines of the California Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace. Note that if an employee is subject to more than one isolation or quarantine period recommended by different agencies, AB 84 requires that the employee be permitted to use these benefits under the order or guidelines that provide for the longest period.
2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
3. The covered employee is personally attending an appointment or attending with a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
4. The covered employee is 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. Note that employers may limit the total sick leave related to each vaccination or booster to three days or 24 hours, unless the employee provides verification from a health care provider that they or their family member is continuing to experience symptoms related to a COVID-19 vaccine or COVID-19 vaccine booster. This three-day/24-hour limit includes the time used to get the vaccine or vaccine booster.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member who is subject to a quarantine or isolation period (as defined by an order or guidelines of the California Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace) or who has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
7. The covered 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.

Who is a “qualifying family member” under AB 84?

A "qualifying family member” is any of the following:

1. A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.
2. A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
3. A spouse.
4. A registered domestic partner.
5. A grandparent.
6. A grandchild.
7. A sibling.

How much SPSL is available under AB 84?

Full-time covered employees are entitled to two buckets of SPSL. The first bucket contains up to 40 hours of SPSL for any of the seven reasons listed above; the second bucket entitles covered employees to an additional 40 hours of SPSL if they show proof that they tested positive for COVID, or proof that a family member for whom they are providing care tested positive for COVID. There is no requirement that employees exhaust the first SPSL bucket before using the additional leave provided in the second SPSL bucket for testing positive, or caring for a family member that tests positive.

Note, however, that to be eligible for the second bucket of 40 hours of SPSL, employers may require documentation of the covered employee’s COVID-19 test results, or the test results of the family member for whom the employee is caring. Employers that require such proof must provide the test at no cost. The employer has no obligation to provide benefits from this second bucket of leave for an employee who refuses to provide documentation of the test results. Although the nature of the documentation an employer can request is unclear at the present time, we expect the Labor Commission to provide clarifying FAQs in the near future.

Part-time employees also are entitled to both buckets of SPSL. However, the amount of leave to which they are entitled under either bucket will be prorated based on their schedules.

How are SPSL benefits calculated and paid?

For non-exempt employees, SPSL is calculated as follows:

• Full-time employees receive 40 hours of each bucket of SPSL, capped at a maximum of 80 hours of SPSL.
• Part time employees with a regular schedule are eligible for prorated SPSL based on their regular schedule.
• Variable schedules employees are eligible for SPSL based on a lookback of their average hours worked over the last six month (or the length of employment if shorter than six months).

Exempt employees are eligible for SPSL calculated in the same manner as the employer calculates wages for other forms of paid leave time.

SPSL is to be paid at the covered employees’ regular rate. This is capped at a maximum of $511 per day and $5,110 in the aggregate per covered employee.

Must SPSL be included on wage statements?

Yes. Just like last year’s bill, the 2022 SPSL must appear as a separate line item on the employee’s itemized wage statement, or in a separate writing provided on the designated pay date. Note that the SPSL must also be separated from the employees’ regular California paid sick days or PTO benefits.

In a change from last year’s requirements, however, only the amount of SPSL that has been used by a covered employee must be listed. For example, if a covered employee used no SPSL in 2022, the statement should list zero hours used. If the employee has used 10 hours of SPSL in 2022, the statement should list 10 hours used.

Do I have to post an AB 84 notice?

Yes. The California Labor Commission is required to publish a model notice within seven days of the date on which AB 84 is enacted. This should be posted in a conspicuous place the workplace, and it must be emailed to employees that work remotely.

Can an employer require a covered employee to exhaust their AB 84 SPSL before providing paid leave under Cal/OSHA’s Exclusion Pay requirements?

No. In a change from last year’s bill, AB 84 explicitly states that if Cal/OSHA exclusion pay is required, then an employer cannot require covered employees to first exhaust their SPSL before providing paid leave under the Cal/OSHA exclusion pay requirements.

Recall that Cal/OSHA exclusion pay is only available if an employee is excluded from the employer’s workplace because of a workplace COVID-19 exposure. Cal/OSHA exclusion pay is not available if: (1) the COVID-19 exposure occurred outside of the workplace; (2) the employee can telework during the exclusion period; or (3) the employee is receiving State Disability Insurance payments from the EDD or Workers’ Compensation Temporary Disability Payments during the exclusion period. You can view more detailed information about Cal/OSHA exclusion pay here.

How should employers handle situations in which an employee requested COVID-19 sick leave on or after January 1, 2022 and was not previously provided with compensation for that qualifying time off work?

Because AB 84 is retroactive to January 1, 2022, covered employees can request AB 84 SPSL for any qualifying use on or after January 1, 2022.

If an employee took unpaid time off for a qualifying reason on or after January 1, 2022, the employee may request (orally or in writing) retroactive SPSL under AB 84. Upon receipt of the employee's request, the employer must issue a retroactive SPSL payment to the employee for the previously taken unpaid time off (so long as it was for a qualifying reason). The amount of hours retroactively paid would reduce the employee’s remaining allotment of SPSL accordingly.

Employers must make this retroactive payment on or before the payday for the next full pay period after the employee makes the request. The employee’s wage statement also must reflect the retroactive payment of SPSL.

Is there a tax credit available to employers?

At the present time, it appears that employers will have to absorb the costs associated with AB 84 SPSL. The state may provide employers with some form of tax offset, tax credit or other funding to defray the this financial burden in the future. What that will look like, however, remains to be seen. Employers should consult with their tax advisors regarding any tax credits that may be available.

Will the California Labor Commission enforce AB 84?

Yes. AB 84 requires the Labor Commissioner to enforce AB 84 in the same manner that it enforces “paid sick days,” “paid sick leave,” or “sick leave” under existing law. We expect that the Labor Commissioner will issue FAQs on AB 84 shortly after the bill takes legal effect. Stay tuned!

For further information regarding COVID-19 benefits or other employment law issues, contact the attorneys at LightGabler.

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