Erick J. Becker
The requirement to pay employees COVID supplemental sick pay (CSPSL) has been in place at various times during the pandemic. With the expiration of the last version of CSPSL on September 30, 2021, there has been no obligation in most circumstances to pay employees who are out due to COVID – but that is about to change again, as the California legislature passed AB 84 this week, and it will soon be signed by the Governor. The obligation to pay CSPSL will become effective 10 days after the Governor signs, so likely on or about February 21, 2022.
Who has to comply with AB 84?
As with the last version, AB 84 only applies to employers with 26 or more employees.
What are the requirements of AB 84?
Employees can request leave, orally or in writing, for any of the following reasons: 1) they have COVID symptoms and are seeking diagnosis, 2) are subject to quarantine, 3) are caring for a family member with COVID or suffering side effects from vaccination, 4) are caring for a child unable to attend school on premises due to a COVID closure, or 5) are absent to receive vaccination or are ill from side effects due to vaccination.
The total leave eligibility is 80 hours, but only 40 hours can be used for any of the reasons listed above. In order to be eligible for the second 40 hours, the employee needs to show that either the employee tested positive or a family member the employee is caring for tested positive.
This requirement means employees taking time off for symptoms or quarantine of themselves or a family member without a positive test, or for child care purposes, would only be entitled to 40 hours of sick pay. In order to receive the full 80 hours, the employee would have to provide evidence to the Company of a positive COVID test for themselves or a family member in their household. In addition, the Company can require the employee to undergo additional testing on the fifth day (or later) after the first positive test, at the Company’s expense.
In another difference from previous versions, only 24 hours can be used for purposes of vaccination or side effects from vaccination.
When does AB 84 go into effect?
The application of AB 84 is retroactive to January 1, 2022, meaning that if an employee was absent for one of the covered reasons and was not paid, the employer may be required to retroactively pay up to 80 hours. Since the employee must request to use their leave, the employer does not have to go back and automatically pay employees who took leave between January 1 and the effective date of AB 84, or ask them if they want to be paid. If an employee makes an oral or written request for retroactive pay, the company can require proof of a positive covid test or other reason for the absence that falls within the eligibility requirements. Retroactive CSPSL must be provided by the pay date for the next full pay period after the request is made.
Another change from previous COVID sick pay requirements is that exclusion pay owed under the Cal OSHA ETS to employees that become infected at work does not run concurrently with AB 84 CSPSL. In other words, employees infected at work would be entitled to 80 hours of pay for their own illness, plus an additional 40 or 80 hours for other covered reasons (such as child care or caring for a family member). As before, AB 84 CSPSL is separate from the regular minimum 24 hours of sick pay under the Healthy Families Act.
Finally, employers must post a notice regarding CSPSL after the effective date, and on the next pay period following the effective date, employee pay stubs must include the amount of CSPSL the employee has used to date. If the employee has not used any CSPSL, then the paycheck would show zero hour used. This must be listed separately from the regular Health Families sick leave available.
There will undoubtedly be questions and issues that arise regarding practical implications of this new law. Please contact Erick Becker if you want to discuss the effect of AB 84 on your business.
Employers who have questions about the revised standards or who need assistance with developing self-attestation forms and other COVID communications should contact Erick Becker at ebecker@cwlawyers.com to set up a time to discuss.
