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Industry Insights

Kamin: COVID Sick Pay a Thing of the Past

  • State: California

Thanks to expiring legislation and Cal/OSHA regulations, COVID-19 sick pay is no longer available for California employees.

John P. Kamin

John P. Kamin

California politicians and regulators have decided to excise COVID-19 sick leave from state laws and regulations in 2023. Previously, there were two ways employees could get COVID sick leave:

  • Regardless of how employees got COVID, they could get up to a total of 80 hours of sick leave with proof of a positive test. This was thanks to SB 114 and later AB 152, which expired on Dec. 31, 2022.
  • Cal/OSHA regulations also required COVID sick leave for employees who alleged they got it from work. This required employers to maintain the wages of an employee who missed work due to industrial COVID exposure. That expired on Feb. 3, when the Office of Administrative Law approved new Cal/OSHA regulations that no longer had the COVID sick pay requirement.

That being said, some local jurisdictions like San Francisco still had COVID sick leave available until Gov. Gavin Newsom’s emergency order expired on Feb. 28. That date has now passed, meaning local city and county COVID sick leave ordinances are no longer in effect. This is because the ordinances were reliant on the declaration of an emergency. With no more COVID state of emergency, there is no more COVID sick pay.

Since these provisions expired, lawmakers could have reinstated COVID sick leave but have opted not to. There are two reasons:

  • Lawmakers probably want to stay consistent with Newsom’s and President Biden’s decisions to end the COVID-19 emergency declarations.
  • COVID infections and deaths were four or fives times lower this winter compared to prior winters, according to news outlets like ABC News. ABC reported that this is largely due to a “combination of more immunity, better treatments, less severe infections and more people following mitigation measures.”

A quick search of the California legislative database shows that while there are proposals during the current session that mention sick leave, none of those bills call for COVID sick leave specifically.

So what is an employee to do if he has COVID and needs time off of work? He can use:

  • State-mandated sick leave.
  • Additional sick leave offered by the employer.
  • Vacation days.
  • Go on EDD.

The reason we reported on COVID sick leave so often is that the regulations kept changing and we anticipated that regulators would penalize employers that failed to provide it. That most certainly became the case when the California labor commissioner cited a physical and occupational therapy provider $9 million for misclassifying 1,280 therapists and failing to provide COVID-19 supplemental paid sick leave.

Needless to say, it’s important for employers to abide by sick leave requirements when required by law.

We will continue to monitor the Legislature for additional COVID sick leave, but at this time, it has gone the way of the dinosaur.

John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.

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