California employers have been on a four-week rollercoaster ride over Cal/OSHA’s revisions to its Emergency Temporary Standard (“ETS”). The ETS was originally effective November 2020. In May 2021, the Board for Cal/OSHA approved revisions to the ETS, and then withdrew the revisions five days before California’s state-wide reopening on June 15. Days later the Board proposed new revisions to the ETS.  On June 17, 2021, the Board finally approved revisions to the ETS.  The same day, the Governor signed an Executive Order making the revised ETS effective immediately. Below is a recap of some key new rules under the ETS affecting California employers.

  1. Employers may allow fully vaccinated employees not to wear face coverings indoors (except in outbreaks) but must document their vaccination status.
  2. There are no face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on the California Department of Public Health’s (“CDPH”) recommendations for outdoor use of face coverings. CDPH’s recommendations can be found here.
  3. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  4. Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.
  5. Physical distancing and barrier requirements are eliminated, regardless of employee vaccination status with the following exceptions:
      • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
      • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
  6. Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  7. Employers may not retaliate against employees from wearing face coverings.
  8. Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems

While employers now have clarification on rules governing masking, physical distancing and barriers in the workplace, they still need to sort out documenting proof of vaccination, providing approved respirators upon request for voluntary use, and testing for fully vaccinated employees.  Cal/OSHA FAQs can be found here.


There remains in place many requirements from the original November 2020 ETS, including:

  • Mandatory, written COVID-19 Prevention Programs.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of outbreaks.
  • Providing notification to employees of exposure and close contacts.
  • Requirements to offer testing after potential exposures.
  • Requirements for responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.

Stay tuned for updates and more guidance to meet the new ETS requirements.

As California reopens on June 15, 2021, employers must be careful to comply with numerous federal, state, and local (county and city) regulations.  Businesses not only have to comply with the state’s reopening guidelines if they serve the public (such as retail, restaurants, and theaters), but they must also comply with Cal/OSHA’s regulations that govern employees.  Here are five resources California employers can use to help in navigating the multitude of regulations they face during the reopening of the state:

1. California’s regulations regarding masks effective June 15, 2021

The state’s guidance of face coverings:

2. Cal/OSHA Emergency Temporary Standards (ETS)

Cal/OSHA’s ETS applies to most employers in California and sets various requirements on employers regarding COVID-19.  Late on June 9, 2021, Cal/OSHA’s Standards Board withdrew proposed revisions to the ETS that were approved on June 3, 2021 and were expected to take effect by June 15, 2021, in connection with California’s reopening and lifting of the restrictions under the “Blueprint for a Safer Economy.”

Cal/OSHA’s website and explanation of the status of the revised ETS is here.

To learn more about Cal/OSHA’s revisions to the ETS and what the withdrawal of the revised ETS on June 9, 2021 means for California employers, see our prior post here.  For additional information about the original ETS implemented in November 2020 that are still applicable to California employers (as of June 11, 2021) is here.

3. California Department of Public Health memo dated May 21, 2021, “Beyond the Blueprint for Industry and Business Sectors – Effective June 15”

The Department of Public Health’s May 21, 2021 memo sets forth the revised restrictions for California as it reopens on June 15, 2021.  The memo addresses vaccine verification/negative testing requirements, capacity limitations, physical distancing, masks, and travel advisories.  The memo can be viewed here.

4. California Department of Public Health memo dated June 9, 2021, “Guidance for the Use of Face Coverings”

 The Department of Public Health’s June 9, 2021 memo sets forth guidance for the use of face covering s for the general public and businesses as the state reopens on June 15, 2021.  The memo can be found here.

5. Local County and City Regulations

Employers need to ensure compliance with local county and city requirements as well.  For example, on June 10, Los Angeles County had a virtual town hall discussing the county’s plan for reopening.  A recording of the town hall can be viewed here:

Los Angeles County will be issuing written guidelines within the next few days.

Late on June 9, 2021, Cal/OSHA’s Standards Board withdrew the revisions to its COVID-19 prevention emergency temporary standards (“ETS”) that were approved on June 3, 2021 and were expected to take effect by June 15, 2021, in connection with California’s reopening and lifting of the restrictions under the “Blueprint for a Safer Economy.”  We wrote about the revisions to the ETS approved on June 3 here.

The Board said this vote to withdraw the revised ETS was made during a “meeting to consider the latest guidance regarding masking from the Centers for Disease Control (CDC) and California Department of Public Health (CDPH).”  In an email sent by the Department of Industrial Relations, they explained:

Those revised emergency standards were expected to go into effect no later than June 15 pending approval by the [Office of Administrative Law] OAL within 10 calendar days after the Standards Board rulemaking package submission. At today’s meeting, the Standards Board voted unanimously to withdraw the revisions approved on June 3 that are currently at OAL for review but have not yet become effective. Cal/OSHA will review the new mask guidance and bring any recommended revisions to the board. The Board could consider new revisions at a future meeting, perhaps as early as the regular meeting on June 17. In the meantime, the protections adopted in November of 2020 will remain in effect.

California employers are looking to Cal/OSHA for guidance on how the state’s reopening on June 15 will impact employers’ obligations.  While California lifts the “Blueprint for a Safer Economy” on June 15, employers are still subject to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards.  The revisions to the ETS were an attempt to bring the workplace requirements for social distancing and face masks closer to the reopening standards for California residents on June 15.  However, with this June 9th announcement that Cal/OSHA is withdrawing the revised ETS, California employers must still continue to comply with the original ETS issued in November of 2020.  Therefore, even though California is “reopening” on June 15, 2021, California employers will have no relief from their current obligations under the original ETS, and still must continue to comply with those requirements.  For more information about what the original ETS require of California employers, see our prior post here.

Still confused and have questions about what this means for California employers?  Join us for a webinar tomorrow (6/10) at 10 a.m. for a discussion of what this all means for California employers. Click here to register for the webinar.


On June 3, 2021, the Cal/OSHA Standards Board met again to vote on new proposed revisions to the Cal/OSHA Emergency Temporary Standards (ETS). As we discussed here, the Standards Board did not vote on the revisions on May 20, as originally planned. A draft of the new proposed revisions was posted on May 28 and can be found here.  The revised ETS are effective June 15, 2021.

The June 3rd vote, however, was not as straightforward as anticipated. The meeting took almost all day and included hours of public comment. Initially, the Standards Board voted 4-3 to reject the May 28 revisions. This initial rejection was followed by a second vote just minutes later, which adopted the changes discussed below.

What changes were made to the ETS?

The new ETS starts by defining the term “fully-vaccinated.” Being fully-vaccinated means that employees are able to provide documentation showing that they have “received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single dose COVID-19 vaccine.”

Face Coverings

Fully vaccinated employees, either when alone in a room or in a room in which all other are also vaccinated and not experiencing symptoms, are no longer required to wear face coverings.  A “face covering” means “a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers.”

Physical Distancing

Also, the physical distancing requirement no longer applies at locations where all employees are fully vaccinated. Further, when outdoors, these individuals will no longer be required to keep six feet of distance from other unmasked employees. Fully vaccinated individuals are allowed to be outdoors without masks provided they are not experiencing COVID-19 symptoms. However, it is important to keep in mind that physical distancing will still be required until July 31, 2021 and fully vaccinated employees must still wear face coverings while indoors in the presence of individuals who have not been fully vaccinated.

Should a fully vaccinated person come in close contact with a COVID-19 case, employers are no longer required to exclude the vaccinated individual from the workplace, as long as he/she is not experiencing COVID-19 symptoms and was fully vaccinated prior to coming into contact with the infected individual. However, a fully vaccinated employee who tests positive for COVID-19 will still be required to stay out of the workplace for 10 days after the test whether experiencing symptoms or not.

Employer COVID-19 Testing Requirement

Employers are also now required to provide free COVID-19 testing during working hours to all unvaccinated symptomatic employees. This testing obligation does not apply to fully vaccinated employees

Other than guidelines regarding vaccinated employees, the new ETS addresses notice and testing requirements and the proper use of respirators.

Written Prevention Programs

In line with prior versions of the ETS, employers must still maintain written COVID-19 Prevention Programs. This written notice must include the employer’s plan for disinfecting the workplace and, information regarding the employer’s COVID-19 policies, and relay “the fact that the vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.” Although employers are still required to inform employees of close contact with a positive individual within one business day, this obligation is now triggered when the employer “knew or should have known of a COVID-19 case.”

Employer’s Obligation to Provide Unvaccinated Employees with Respirators

Beginning July 31, 2021, employers will be required to provide respirators to non-vaccinated employees. Cal/OSHA defines a respirator as a device “approved by the National institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” Use of these respirators, however, will be voluntary. Providing these to employees relieves employers of their duty to enforce physical distancing.

Exclusion Pay

Employees excluded from the workplace for COVID-19 cases and those who had close contact with COVID-19 cases are entitled to “earnings, wages, seniority, and all other employee rights and benefits” while away from the workplace. Like the prior ETS, employers can still use the employee’s sick leave for to satisfy this requirement as long as it does not run afoul to any applicable laws.

Under the new ETS, however, employers are still required to pay exclusion pay whether or not the excluded employee is able to work. This is a departure from the original version of the ETS, which did not require employers to pay exclusion pay to employees who, for any reason, could not work while away from the workplace.

It is worth noting that exceptions still apply to the employer’s obligation to provide exclusion pay. First, the employee is not entitled to exclusion pay if he/she is receiving disability payments or is covered by worker’s compensation. Additionally, if an employer can show that close contact was not work-related, the employer is not required to provide exclusion pay.

How does the new ETS compare to Governor Newsom’s reopening plan?

Since the proposed revisions were posted on May 28, many have criticized Cal/OSHA’s changes as not going far enough compared to Governor Newsom’s plans that would essentially end mask mandates and social distancing requirements as of June 15, 2021. In fact, the board members who initially voted against the revisions shared the same sentiment.

However, the Standards Board, specifically the board members who initially rejected the vote, acknowledged that the new ETS is at least a step in ultimately easing all pandemic related restrictions. Simply put, something is better than nothing. Cal/OSHA’s rejection of the proposed revisions would be taking significant steps backward as Governor Newsom marches forward with his plans to return Californian’s to pre-pandemic life.

More revisions likely to come.

In response to the criticism, the Board has created a three-person subcommittee to explore further revisions to the ETS.  Subscribe to our blog for future updates on this and other important topics facing California employers as they reopen.

[Updated to reflect the new EEOC EEO-1 deadline of August 23, 2021]

California employers must continue to be ever vigilant about their obligations as we enter into the summer.  Here are five key dates California employers must be aware of during June and July 2021:

1. Cal/OSHA revised COVID-19 Prevention Emergency Temporary Standards likely to take effect on June 15, 2021

Cal/OSHA is proposing revisions to the Emergency Temporary Standards (ETS) to reflect the increase in vaccinations (see our prior post here).  The revisions were scheduled to be voted on May 20, 2021, but given the CDC’s recent guidance permitting vaccinated individuals to not wear masks, the vote was delayed until June 3 in order to permit Cal/OSHA to further revise the regulations.  It is expected the revised ETS, if approved on June 3, will likely become effective on June 15, 2021.  Employers will need to review the revised ETS and ensure compliance by the likely June 15, 2021 deadline.  As discussed below, as California reopens on June 15, 2021, the ETS will still govern California employers, therefore it is important for employers understand the revisions made to the ETS.

2. California reopening on June 15, 2021

Beginning June 15, 2021, California will lift most of its restrictions for indoor and outdoor settings, with vaccine verification and negative testing will only be required for indoor mega events and recommended for outdoor mega events.  California employers will still need to comply with Cal/OSHA’s ETS discussed above.

3. CalSavers June 30, 2021 deadline for employers with more than 50 employees

California employers who do not offer an employer-sponsored retirement plan and have five or more employees must register for CalSavers, which is a California state administered retirement plan.  California employers must register for CalSavers by the following dates:

  • Employers with more than 100 employees: September 30, 2020
  • Employers with more than 50 employees: June 30, 2021
  • Employers with more 5 ore more employees: June 30, 2022

More information about CalSavers is here.

4. July 1, 2021 local minimum wage increases across California

Many local county and city minimum wage rates increase across California on July 1, 2021:

July 1, 2021 Local Minimum Wage Increases in California
Local Jurisdiction: Minimum Wage Rate: Source:
Berkeley $16.32/hour
Emeryville $17.13/hour
Fremont $15.25/hour for employers with 26 or more employees; $15.00/hour for employers with 1 to 25 employees,wage%20increases%20for%20Small%20Employers
Los Angeles County (Unincorporated areas) $15.00/hour (for all sizes of employers)
Los Angeles City $15.00/hour (for all sizes of employers)
Malibu $15.00/hour (for all sizes of employers)
Milpitas $15.65/hour
Pasadena $15.00/hour (for all sizes of employers)
San Francisco $16.32/hour
Santa Monica $15.00/hour (for all sizes of employers)

5. New EEO-1 submission deadline is August 23, 2021 (previously set for July 19, 2021)

The EEOC announced that the 2021 and 2020 EEO-1 Component 1 data must be submitted by Monday, August 23, 2021 (it was previously set for July 19, 2021).  EEO-1 data must be submitted by employers with 100 or more employees, and certain employers who are federal contractors with 50 or more employees.  Employers must provide “demographic workforce data, including data by race/ethnicity, sex and job categories.”  Employers may begin uploading their data files as of May 26, 2021.

More information can be viewed at the EEOC’s website here:

In November of 2020, Cal/OSHA came out with the COVID-19 Emergency Temporary Standards (ETS), which we covered here. The ETS provided guidance to employers in regard to developing workplace safety policies in response to the COVID-19 pandemic and required employers to draft written COVID-19 Prevention Programs. Since then, the ETS has been updated to reflect the changing COVID-19 landscape. For information regarding prior updates to the ETS, see our prior post.

As COVID-19 related deaths hit their lowest points since the start of the pandemic and with approximately 59% of Californians at least partially vaccinated, Cal/OSHA once again proposed a new set of changes to the ETS on May 7, 2021. The proposed revisions can be found here.  At first glance, it seems as though many of the proposed changes were prompted by the need for guidance in light of a an increasingly vaccinated population. Naturally, employers should make sure to monitor any updates to the ETS to ensure compliance as the vaccinated workforce continues to grow and businesses begin to fully reopen.

The Standards Board was scheduled to vote on the proposed changes on May 20, 2021. However, on the eve of the vote, Cal/OSHA’s Deputy Chief Eric Berg asked the Board to postpone its vote on the draft proposal. Berg suggested that any changes to the existing ETS would come into effect on June 15, 2021. To meet this deadline, which coincides with the date that California plans on adopting the CDC’s guidance allowing vaccinated individuals to not wear masks, the Standards Board has scheduled a June 3 meeting to vote on the new changes. The revised proposal must be drafted and posted by May 28, 2021.

On Friday, we replayed our March 23 webinar covering various topics including the American Rescue Plan’s renewal of FFCRA benefits and California’s brand new COVID-19 Supplemental Paid Sick Leave (SB 95). In both the original run and the replay, we got tons of great questions from employers about these two new laws. Below are answers to a few of the most common questions we get.

If an employee took paid leave in 2020 under the FFCRA, do I have to provide them new paid leave in 2021?

Yes and no. Whereas FFCRA paid sick and family leave was mandatory for covered employers last year, the renewed FFCRA for 2021 is optional. Eligible employers can elect to make FFCRA leave available to employees, but are not required to do so. Because California employers have corresponding mandatory leave obligations under California law (including COVID-19 Supplemental Paid Sick leave and Cal/OSHA exclusion pay), California employers may prefer to provide FFCRA leave in order to take advantage of the payroll tax credits available exclusively under the federal law.

If an employer does elect to make FFCRA leave available to employees, then the amount of leave available resets from 2020. So, employees who used any or all of their 2020 FFCRA leave would be entitled to new leave for 2021. Employees who did not use all of their 2020 FFCRA leave cannot carry it over into 2021 (except to the extent they were on a qualifying leave that started in 2020 and carried over into 2021).

If an employee was out of work in January or February 2021 for reasons that would qualify under the Supplemental Paid Sick Leave, do I have to go back and pay them for that time?

Yes…but only if they ask for it. SB 95, the law enacting COVID-19 Supplemental Paid Sick Leave, went into effect on March 29, 2021, but the paid leave is available for qualifying leaves retroactive to January 1, 2021.

That does not mean the employer has to unilaterally make retroactive payments. Rather, an employer’s obligation to make retroactive payments arises only if the employee makes an oral or written request. Once the employee makes the request, the employer has to make the retroactive payment on or before the payday for the next full pay period after the request.

Is the employee required to provide documentation to support COVID-19 Supplemental Paid Sick Leave eligibility?

No, says the Labor Commissioner. An employee is entitled to leave upon oral or written request, and an employer cannot condition leave or payment on medical certification or other documentation. On the other hand, if the employer has information indicating an employee was not truthful about the qualifying reason for the leave—e.g., “Bill says he needed to quarantine last week, but his social media account has pictures of him at the beach every day.”—then an employer could request documentation. (It’s always best to get legal counsel to advise on such issues.)

I paid an employee exclusion pay under Cal/OSHA back in February. Can I get any COVID-19 Supplemental Paid Sick Leave credit for that? If the employee requests CV-19 SPSL for that time, do I have to pay them twice?

You do not have to pay them twice. You can potentially claim a credit for that pay, but you have to act fast. For any qualifying leave taken in 2021 for which the employee was provided paid leave—for example, as Cal/OSHA exclusion pay or as a voluntary benefit, excluding vacation—the employer can credit that leave against the employee’s available COVID-19 Supplemental Paid Sick Leave, provided the leave was for a qualifying reason and either the employee was paid the applicable rate of pay or the employer makes a retroactive catch-up payment.

However, keep in mind that the employer is also obligated to advise each employee of the amount of available supplemental paid sick leave, either on a wage statement or a separate written notice provided on payday. So, to claim retroactive credit for any paid leave provided earlier this year, the employer probably needs to calculate that credit now so that the available leave reported to the employee reflects this deduction. In other words, you should not wait for the employee to take leave in the future before calculating any credit you intend to claim.

Legislation at the federal and state level this month changed many paid sick leave regulations for California employers.  California employers could be subject to at least five different paid sick leave laws spanning federal law, state law, state-regulations, and local government regulations.  As employers reopen in California, it is important to review the various paid sick leave requirements to understand which ones apply to your business to ensure compliance.

1. Families First Coronavirus Response Act (FFCRA)

The FFCRA enacted under the Trump administration on March 19, 2020 expired on December 31, 2020.  The Consolidated Appropriations Act of 2021 permitted employers to take a tax credit who continued to voluntarily provide paid FFCRA leave to employees through March 31, 2021.  The American Rescue Plan of 2021 passed on March 11, 2021, extended the payroll tax credits for qualifying leave that is voluntarily paid by employers through September 30, 2021.  The FFCRA and these extensions for the tax credits for the voluntary paid leave applies to employers with fewer than 500 employees.  The FFCRA does not require employers to provide paid sick leave in 2021, but employers who are voluntarily providing the paid sick leave for qualifying reasons are eligible for a tax credit for this paid leave.

2. 2021 California Supplemental Paid Sick Leave

Governor Newsom signed new legislation on March 19, 2021 requiring California employers to provide COVID-19 supplemental paid sick leave.  The new law applies to employers with more than 25 employees, expands the list of covered reasons for the paid leave from the old 2020 requirements, applies for all leave taken by employees in 2021 (upon verbal or written request by an employee, employers must pay for leave retroactively to January 1, 2021), must update and provide notice to employees on their pay stubs of the new amounts of supplemental paid sick leave the employee is entitled to at the end of the first full paid period following March 29, 2021, and there is a new posting requirement.

3. Cal/OSHA Emergency Temporary Standards (Cal/OSHA ETS)

On November 30, 2020, California’s Office of Administrative Law approved Cal/OSHA’s emergency standards setting forth new requirements for California employers. Under the new requirements, employers must develop a written COVID-19 prevention program, train employees, provide personal protective equipment to employees, provide certain information to employees, and abide by record keeping and new reporting requirements.  In addition, the Cal/OSHA ETS requires employers to provide “exclusion pay” to employees under certain circumstances.

4. Local County and City COVID-19 Paid Sick Leave Ordinances

Many local county and city governments have enacted their own COVID-19 paid sick leave requirements as well, including:

  • Los Angeles County:
    • Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
    • Applies retroactively to business starting on January 1, 2021.
    • [Update] LA County passed COVID-19 vaccine paid leave on May 18, 2021.  Read more about the ordinance here.
  • Los Angeles City: Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
  • Long Beach City: Reviewed every 90 days and still in force.
  • Oakland City: Extended until the end date of Oakland’s COVID-19 emergency declaration
  • City of Sacramento: Expires on March 31, 2021
  • San Francisco County and City: Both extended until April 12, 2021
  • City of San Jose: Expires on June 30, 2021
  • San Mateo County: Expires on May 1, 2021
  • City of Santa Rosa: Expires on March 31, 2021
  • Sonoma County: Expires June 30, 2021

5. California’s Healthy Workplaces, Healthy Families Act of 2014 and Local Paid Sick Leave Ordinances

California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, became effective on January 1, 2015.  The law requires employers of all sizes to provide 1 hour of paid sick leave for every 30 hours worked or another approved method.  Employer may cap the accrual of paid sick leave at 48 hours and cap the use of paid sick leave at 3 days or 24 hours, whichever is greater, within a 12-month period.

Some local governments also have their own paid sick leave requirements employers must comply with.  These requirements were in place pre-COVID-19.  Some examples of cities in Southern California with their own requirements include:

Update: Governor Newsom signed SB-95 on March 19, 2021.  Therefore, employers have until March 29, 2021 to ensure compliance with the new requirements. 

California’s supplemental paid sick leave for employees and food sector employees expired on December 31, 2020.  Just as California businesses are starting to reopen, California’s legislature passed and presented to Governor Newsom today (March 19, 2021) a new supplemental paid sick leave bill (SB-95) extending paid sick leave for California employees until September 30, 2021. Unlike the prior California COVID-19 paid sick leave law that applied to employers with more than 500 employees, the new law expands coverage to employers with more than 25 employees.  Here are five issues California employers need to know about the new paid sick leave law if Governor Newsom signs the bill (which is expected):

1. Covered employers

The new law would apply to employers with more than 25 employees. If signed by the Governor, the law requires the Labor Commissioner to made available within 7 days a poster required for employers to post in their workplaces.

The law also sets forth requirements for in-home supportive services, which is not addressed in this article.

2. Effective time period

The law retroactively applies to employers going back to January 1, 2021.  The law expires on September 30, 2021.

3. Qualifying reasons for paid sick leave

The law requires employers to pay COVID-19 supplemental paid sick leave to employees who are unable to work or telework due to any of the following reasons:

  1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
  2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
  4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The covered employee is caring for a family member, as defined in subdivision (c) of Section 245.5, who is subject to an order or guidelines described in subparagraph (A) or who has been advised to self-quarantine, as described in subparagraph (B).
  7. The covered employee is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

4. Amount of paid sick leave required

Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they are considered full time, or if the employee worked or was schedule to work, on average, at least 40 hours per week for the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.  Otherwise, employees are entitled to their total number of hours they normally are scheduled to work for the employer over two weeks, and if the employee works a variable schedule, then they receive 14 times the average number of hours worked in the six months preceding the date the employee took COVID-19 supplemental paid sick leave.  The law also sets forth how employers are to calculate each hour of COVID-19 supplemental paid sick leave for exempt and non-exempt employees.

Limited Use of Other Leaves

The supplemental paid sick leave must be in addition to any paid sick leave available to the employee pursuant to the Healthy Workplaces, Healthy Families Act of 2014 as set forth in Labor Code section 246.  Employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses COVID-19 supplemental paid sick leave.  However, employers may require employees to first exhaust their supplemental paid sick leave prior to paying employees under the Cal-OSHA COVID-19 Emergency Temporary Standards.


Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave.  However, if federal legislation amended these limits as set forth in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA), then the increased limits would apply to the California law.

Amount Must Be Set Forth In Writing To Employee

Employers must set forth the amount of COVID-19 supplemental paid sick leave available to an employee on the employee itemized wage statement or other writing provided on the designated pay date with the employee’s payment of wages.  For employees who work variable schedules, employers must perform an initial calculation of paid sick leave available and then indicate “(variable)” next to the calculation.  Then the employer must update the calculation when the employee requests covered paid leave or request records under Labor Code section 247.5.

5. Retroactive pay required to employees

If signed by the Governor, the law requirement to provide COVID-19 supplemental paid sick leave takes effect 10 days later, but the law shall apply retroactively to January 1, 2021.  Therefore, if an employee has taken leave since January 1, 2021 which was not paid by the employer, and is covered by one of the qualifying reasons for paid leave, upon the employee’s oral or written request by the employee, the employer is required provide the employee with a retroactive payment.  This payment must be made on or before the payday for the next full pay period after the request is made.  The employer must reflect this payment on the itemized wage statement or another writing provided to the employee on the designated pay date.

For additional updates on this new proposed law, as well as other California employment laws facing employers as they reopen their businesses, will be provided during my firm’s webinar on March 24, 2021 at 10 a.m. PT.  Registration for the webinar is here.

Late last year, Cal/OSHA implemented Emergency Temporary Standards that imposed dramatic new testing, training, and recordkeeping requirements related to COVID-19 exposure in the workplace. Most controversial of these new requirements was a mandate that employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations, unless the employee was unable to work for other reasons (including hospitalization) or the employer could demonstrate that the COVID-19 exposure was not work related. Combined with requirements that even asymptomatic close contacts be excluded for at least 10 days (regardless of a negative test), this new ETS imposed significant pay obligations on employers just as various state and federal COVID-19 paid leave requirements were expiring at the end of 2020.

As noted previously, various business groups challenged portions of the ETS in state court in San Francisco, one of several such lawsuits. But after extensive briefing from the parties (and several interested non-parties), the judge last week issued an order denying a motion to preliminarily enjoin portions of the ETS:

Plaintiff have not shown a likelihood of prevailing on the merits of their claims.  Even if they could do so, the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health way heavily in favor of the continued implementation and enforcement of the ETS Regulations.  With the single exception of restrictions on attendance at religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illness, hospitalization, and deaths that follow in its wake. [Citations] This Court will not be the first.  Lives are at stake.

There is no indication as to whether the plaintiffs will appeal. The case does not end with this denial, but the ruling means the court will allow the ETS regulations to stand while the litigation proceeds. Therefore, employers should continue to follow the ETS regulations and track new updates from Cal/OSHA.