Written by Jeremy Mittman

Last week, California’s Department of Industrial Relations released FAQs for the state’s recently enacted 2022 COVID-19 Supplemental Paid Sick Leave law. Highlighted below are several clarifying points from the FAQs.

Read our general breakdown of the new law here.

Definition of Quarantine or Isolation Period 

The FAQs clarify that the guidelines that would apply to determine whether and for how long a family member would need to isolate or quarantine are the CDPH guidelines, currently available here. For guidance on when an employee may be required to isolate or quarantine from the workplace, the FAQs point to the Cal/OSHA’s Emergency Temporary Standards FAQs (which currently rely on the CDPH guidelines)..  The FAQs observe that the current isolation or quarantine guidance may change so it is important to monitor any those websites for any developments.  The FAQs note that at the time of preparation, “generally, all symptomatic individuals must isolate after exposure to COVID-19 [and] if a covered employee was exposed but has no symptoms and has not tested positive, the quarantine period will depend on vaccination status.”

Retroactive Leave

Starting on February 19, 2022, employers must begin providing COVID-19 supplemental paid sick leave, retroactive to January 1, 2022. The FAQs clarify that the retroactive payment is only required if the covered employee specifically makes an oral or written request to be paid for leave that qualifies.

Requesting Documentation

• Retroactive pay: An employer may request documentation only if the employee is requesting retroactive pay for leave if the employee or qualifying family member was positive for COVID-19. According to the FAQs, this documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.
• An employer cannot require certification from a health care provider before allowing an employee to take requested leave. An employer may, however, request documentation before paying the sick leave in certain circumstances. Those circumstances are:
  • If an employee is using the supplemental paid sick leave that is only available after a positive test of the employee or the employee’s family member. In this circumstance, if the employee fails to provide the applicable test results upon a reasonable request from their employer, the employer may deny pay for any leave taken.
    • Notably, the FAQs clarify that the law does not specify type of test and does not place conditions on how the test is administered in order to qualify for leave. 
  • When an employee uses more than three days or 24 hours for a single vaccine appointment and recovery from any related side effects.

Two “sets” of up to 40 hours of leave

The law provides for two sets of leave: 40 hours that can be used for any qualifying reason and 40 hours that can be used when an employee or qualifying family member tests positive for COVID-19. According to the FAQs, the two weeks do not need to be consecutive, and exhaustion of one is not required before using another. For example, a full-time covered employee can use 10 hours from the first bank to receive a COVID-19 vaccine booster shot and recover from symptoms, 40 hours from the second bank to care for a family member that tested positive for COVID-19, and then 30 hours from the first bank to care for a child whose daycare had closed due to COVID-19 on the premises.

We will continue to monitor the FAQs for further updates. As a reminder, employers should post a notice regarding COVID-19 supplemental paid sick leave in the workplace. The Labor Commissioner has made a model notice publicly available for employers to provide to their employees, available here. For covered employers that do not have employees frequenting the workplace, this notice may be disseminated electronically.