September 2022 Updates to California’s Covid Paid Sick Leave Law
California’s Covid Paid Sick Leave law has been extended through the end of the year. Originally, the law was set to expire on September 30, 2022, and now it is set to expire on December 31, 2022.
Although the law has been extended, employees who have already exhausted their Covid PSL are not entitled to additional time.
Effective September 29, 2022, the state made two changes to the law:
- As detailed below, employers can ask an employee who tests positive for Covid to submit to a follow-up diagnostic Covid test on or after the fifth day of the initial positive Covid test and provide documentation of the test results.Now, if the diagnostic test is positive, the employer may require the employee to submit to a second diagnostic test after 24 hours. Reminder: you must cover the cost of the tests.
- If an employee refuses to provide documentation of the test results or refuses to submit to a diagnostic test, the employer can deny the use of Covid PSL.
Under recent amendments to the law, the state also created the California Small Business and Nonprofit COVID-19 Relief Grant Program. The program will provide certain employers with grants up to $50,000 to cover the actual cost of providing Covid PSL. These grants will not count as “gross income” for state tax purposes. You should consult your CPA or tax attorney for more information on eligibility, how to apply and any tax implications.
For more information on the details of the law, please refer to the information below.
Jump to a topic:
- What if I already offer paid time off?
- What about Cal/OSHA Exclusion Pay?
- 1 week of COVID PSL if the employee or a family member tests positive for COVID
- 1 week of COVID PSL if the employee needs to be out for a number of other COVID-related reasons
- How many hours is 1 week of COVID PSL?
- How to calculate COVID PSL pay
- Retroactive
- How long do I have to provide COVID PSL?
- Poster and Pay Stub Requirements
California has enacted a new COVID paid sick leave law (COVID PSL) that applies to employers with more than 25 employees.
Employers are required to start making COVID PSL available on February 19, 2022. However, the law is retroactive to January 1, 2022. This means that employees are able to request that COVID PSL be applied to qualified absences that were taken earlier in the year.
This law gives employees 2 banks of COVID PSL they can use:
- 1 week of COVID PSL if the employee or a family member tests positive for COVID
- 1 week of COVID PSL if the employee needs to be out for a number of other COVID-related reasons
Note that a similar state law was in place that expired along with the federal paid leave program (FFCRA) on September 30, 2021, but the details are not the same as this new law.
What if I already offer paid time off?
You are not permitted to count an employee’s regular sick leave, vacation, or PTO banks of time toward COVID PSL. COVID PSL is meant to be provided in addition to your regular paid-time-off benefits.
However, if you are in a city or county that has its own COVID paid leave requirements, you can count paid leave provided under that local law toward this state-mandated COVID PSL.
We also work with many employers who voluntarily decided to provide paid time off for COVID absences outside of their regular paid-time-off benefits. This time can also be applied toward the state-mandated COVID PSL.
What about Cal/OSHA Exclusion Pay?
As you should be aware, Cal/OSHA requires that you provide paid leave to employees who were exposed to COVID in your workplace and, as a result, need to be excluded from the workplace for a period of time.
Unfortunately, paid time off under Cal/OSHA Exclusion Pay cannot count toward this new state-mandated COVID PSL. Therefore, if an employee must stay out of the workplace as a result of workplace exposure, their time must be paid pursuant to Cal/OSHA Exclusion Pay without the employee using any of their COVID PSL bank of time.
The prior version of COVID PSL that was in effect last year allowed you to run these paid leaves concurrently, but the state legislature did not allow that to happen in this new law.
1 week of COVID PSL if the employee or a family member tests positive for COVID
An employee is able to take up to 1 week of COVID PSL if the employee is unable to work or telework because they, or a family member they are caring for, tests positive for COVID. “Family member” is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.
Employees are entitled to a maximum of 1 week of COVID PSL for this reason – this bank of leave doesn’t renew each time the employee or their family member tests positive for COVID.
Employers can require an employee requesting COVID PSL for this reason to provide proof of their or their family member’s positive test. In addition, employers can ask an employee to submit to a follow-up COVID test on or after the fifth day of the initial positive COVID test and provide documentation of the test results. The employer must pay for this test if it is being required.
If the employee qualifies for COVID PSL for this reason, this bank of COVID PSL leave should be used before the employee’s second week of COVID PSL as described below.
1 week of COVID PSL if the employee needs to be out for a number of other COVID-related reasons
An employee is able to take up to 1 week COVID PSL if the employee is unable to work or telework because they are:
- Subject to, or caring for a family member who is subject to, a quarantine or isolation period related to COVID-19 based on an order or guidance from the CA Department of Public Health, the CDC, a local public health officer, or the advice of a healthcare provider.
- Attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
- Experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster.
- Experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.
Employees are entitled to a maximum of 1 week of COVID PSL for reasons that fall into the categories above – this bank of leave doesn’t renew each time there is a new qualifying COVID issue. However, if the employee uses COVID PSL for a vaccine appointment and/or vaccine side effects, you can limit their use to three days (24 hours), unless the employee provides medical confirmation that they need more time.
“Family member” is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.
How many hours is 1 week of COVID PSL?
For any employee who you consider to be full-time, 1 week of COVID PSL is equal to 40 hours. This is the case even if full-time in your business is less than 40 hours, and even if the employee regularly works less than 40 hours.
Also, any employee who worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took COVID PSL is entitled to 40 hours.
Part-time employees are entitled to a week of COVID PSL based on their normal weekly schedule. If the part-time employee does not have a normal weekly schedule, let us know and we can help you calculate the amount of time they are entitled to.
How to calculate COVID PSL pay:
Non-exempt employees should be paid COVID PSL at their regular rate of pay for that workweek.
Exempt employees should be paid COVID PSL at the same rate they are paid for other forms of paid leave.
The maximum amount of COVID PSL pay an employee may receive is $511 a day and $5,110 total.
Retroactive
If an employee missed time from work due to COVID earlier in 2022 and either used their regular paid-time-off benefits or took it as unpaid leave, the employee has the right under this law to have you apply their COVID PSL retroactively to cover those absences.
Note that you are only to do this if the employee requests it of you. It is up to the employee to decide whether they want any COVID PSL applied to prior absences.
How long do I have to provide COVID PSL?
The law is set to expire Sep 30, 2022. Therefore COVID PSL will not apply to COVID-related absences that begin after that date. However, if an employee is in the middle of using COVID PSL on September 30th, they should continue to receive any remaining COVID PSL for that period of absence.
Poster and Pay Stub Requirements
You will be required to post this poster in a conspicuous area in your office and send it electronically to any remote employees.
You also need to make sure to set up your pay stubs to show how much COVID PSL employees use each pay period. If an employee doesn’t use any COVID PSL during the pay period, then the paystub should state that zero COVID PSL was used. COVID PSL should be listed separately from any other form of paid sick leave available to the employee. This requirement doesn’t take effect until one full pay period after February 19, 2022.
For more information, please see this FAQ on CA COVID Paid Sick Leave from the California Department of Industrial Relations.
