Governor’s COVID -19 Emergency Response Package on Leave Policies

The issue of more paid sick time for individuals whose employers don’t provide it is coming back into the legislative realm. SYASL is hearing that – rather than simply extending last year’s SB 95 – labor, the legislature, and the administration are open to re-negotiating certain terms of the sick leave. Possible details could include:

  • Carveout for small businesses with less than 26 employees
  • No more than 80 hours for all employees (regardless of vaccination status). It is broken down as follows:
    • Up to 40 hours may be used for:
      • Getting vaccine for themselves or child or recovering from side effects related to vaccine (only up to 24 hours of leave can be used for these two reasons)
      • Caring for child under 18 if the child has COVID, are required to quarantine, or their school is closed due to COVID on the premises
      • Symptomatic and awaiting COVID test result (note: at this time, it is unclear to us exactly what the parameters of this are and which bucket it falls into, but we believe it is part of this 40-hour bucket)
    • If you test positive for COVID:
      • You get 40 hours of leave and the employer then may mandate that you test on day 5
        • If your day 5 test is negative- no more sick leave
        • If you refuse to get tested- no more sick leave
        • If your day 5 test is positive, you get up to 40 more hours of leave, but you cannot exceed 80 hours in total. So, for example, if you used 8 hours already to go get vaccinated, you would now only have 32 hours left for this purpose.
  • Rate of pay would be same as normal paid sick leave under Labor Code Section 246 + same pay caps as in SB 95 ($511 per day max)
  • Sunset on September 30, 2022
  • Unclear if this is in proposal: The employer can require that this leave be exhausted before using leave available under the Cal/OSHA ETS 

A few additional notes: 

  • The bill will be retroactive to January 1 and it would most likely be signed by next week or the following week. 
  • There is no explicit PAGA carveout, however, as long as it is in the same Article of the Labor Code as prior paid sick leave bills, there is some case law supporting the position that you cannot bring PAGA claims for violations of that Article. Further, we understand there have not been any COVID paid sick leave PAGA notices from AB 1867 or SB 95.

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