By Renee E. Coover, JD, and Brooklyn H. Townsend, JD, ByrdAdatto

California is quickly establishing new requirements on its employers when it comes to paid sick leave and COVID-19. In the past year, California has implemented the 2021 COVID-19 Supplement Sick Leave, 2022 COVID-19 Supplement Sick Leave, and Exclusion Pay under the COVID-19 Emergency Temporary Standards.

2021 COVID-19 Supplemental Paid Sick Leave

From January 1, 2021, to September 30, 2021, California required employers with 26 or more employees to provide their workers up to 80 hours of supplemental paid sick leave for COVID-19-related reasons. After September 30, 2021, workers who were not paid the supplemental paid sick leave but were entitled to it, as they were unable to work in 2021 due to COVID-19, can still request pay from their employer or file a claim with the labor commissioner.

2022 COVID-19 Supplemental Paid Sick Leave

Effective February 19, 2022, covered employees in the public or private sectors who work for employers with 26 or more employees are entitled to up to 80 hours of 2022 COVID-19-related paid sick leave from January 1, 2022, through September 20, 2022. An employee may be entitled to this supplemental paid sick leave immediately upon an oral or written request to their employer.

All employers, public or private, with 26 or more employees are covered by the 2022 COVID-19 Supplemental Paid Sick Leave. The law provides employees with two "banks" of leave, and both banks may be up to 40 hours. For the first bank of leave, covered employees will include those employees who cannot work or telework due to the following reasons:

• Caring for yourself: The covered employee is subject to a quarantine or isolation period related to COVID-19, has been advised by a health care provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
• Caring for a family member: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 or has been advised by a health care provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
• Vaccine-related: The covered employee or a qualifying family member is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.

For the second bank, up to 40 hours of paid sick leave is available only if an employee or a family member for whom they are providing care test positive for COVID-19.

Exclusion Pay Under the COVID-19 Emergency Temporary Standards (ETS)

California has also implemented COVID-19 Emergency Temporary Standards (ETS) that became enforceable on January 14, 2022. Under the ETS, if an employee is excluded from work because of workplace exposure to COVID-19, they are entitled to receive exclusion pay if the employee was not assigned to telework during that time, and the employee did not receive Disability Payments or Workers' Compensation Temporary Disability Payments during the exclusion period.

The ETS applies to all employers, employees and places of employment subject to the following exceptions:

1. Work locations where there is only one employee who does not have contact with other people;
2. Employees who are working from home;
3. Employees working from a location chosen by the employee that is not under the control of the employer; and
4. Employees who are covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199). Section 5199 above applies to work in the following facilities:
   1. Hospitals;
   2. Skilled nursing facilities;
   3. Clinics, medical offices, and other outpatient medical facilities;
   4. Facilities where high hazard procedures are performed;
   5. Home health care;
   6. Long-term health care facilities and hospices;
   7. Medical outreach services;
   8. Paramedic and emergency medical services, including these services when provided by firefighters and other emergency responders; and
   9. Medical transport.

It is important to note that the ETS does apply to employees at these facilities who are not identified in the employer's Aerosol Transmissible Diseases Exposure Control Plan, as required under California's Aerosol Transmissible Diseases standard, as having occupational exposure to aerosol transmissible diseases (ATDs), such as administrative employees who work only in an office environment separated from patient care facilities.

If the employer provides all employees with protections under its ATD Exposure Control Plan and has incorporated those employees into the plan in accordance with section 5199 because they have an occupational exposure to COVID-19, those employees would not be subject to the ETS.

Overlap of California Sick Pay Regulations

Under the ETS, an employee must be exposed to COVID-19 in the workplace to receive exclusion pay. Unlike exclusion pay, employees need not have been exposed to COVID-19 at work for 2022 COVID-19 Supplemental Paid Sick Leave to apply. Unlike 2021 Supplemental Paid Sick Leave, employers may not require employees who are excluded from work under the ETS to first exhaust 2022 COVID-19 Supplemental Paid Sick Leave.

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Renee E. Coover, JD, is an associate with ByrdAdatto, a law firm focusing on business, healthcare, and aesthetics. She has a unique background, blending litigation with healthcare law. A former litigator in high-stakes employment cases, Renee has extensive experience with counseling and representing businesses in employment matters, policies, and contract disputes, and defending business owners in state and federal trials. She has also served as General Counsel for the American Med Spa Association, advising health care professionals on regulatory and legal issues governing the medical spa industry.

After graduating from Texas Tech University and following her dream of attending law school at SMU Dedman School of Law, Brooklyn H. Townsend began her legal career at ByrdAdatto as the law clerk in 2020. During that time, she grew her skills in various regulatory and business areas within the medical spa industry. Now, as an attorney, Townsend enjoys helping clients form the proper business structure while ensuring their innovative ideas are within state laws and regulations. She finds it rewarding in her work to create solutions to the complex questions that arise when it comes to running a business in the health care environment.