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California's new COVID-19 supplemental paid sick leave only impacts employers with at least 26 employees

Covered employees eligible for up to 80 hours of supplemental leave for qualifying reasons

February 09, 2022 7500

Beginning Feb. 19, employers in California with more than 25 employees must provide up to 80 hours of COVID-19 supplemental paid sick leave to full-time employees who are unable to work or telework for reasons related to COVID-19, including caring for themselves or a family member who is ill with COVID-19 or experiencing symptoms after receiving a coronavirus vaccine or booster.

Only California dental practices that employ at least 26 employees therefore must comply with the new supplemental paid leave. The leave was enacted through legislation Gov. Gavin Newsom signed into law today as part of the state’s early budget action on COVID-19 as the omicron variant continues to sicken workers and roil the economy. 

Covered employers must apply the supplemental sick leave policy retroactively to Jan. 1, 2022, and until it expires Sept. 30, 2022. Covered employers must also post a notice of the supplemental leave in a conspicuous location in the workplace. 

California’s new supplemental leave is in addition to prior COVID-19 supplemental paid sick leave the employee received or was entitled to receive under expired state or federal law. The newly approved leave is different in that it establishes two “buckets” of leave for different purposes and requirements. Further, employers cannot require employees to exhaust their supplemental sick leave prior to receiving exclusion pay under the Cal/OSHA COVID-19 Emergency Temporary Standard. Under the Cal/OSHA ETS, employees excluded from the workplace for a work-related exposure will need to be paid by the employer.

40 hours supplemental paid leave: Qualifying circumstances

Covered employees in California are allowed 40 hours of paid supplemental leave if they are unable to work or telework for any of the following reasons:

  • Are subject to quarantine or isolation related to COVID-19 as required under an order or guidance (i.e., State Department of Public Health, Centers for Disease Control and Prevention or a local department of public health). 
  • Have been advised by a health care provider to quarantine for COVID-19 reasons.
  • Are experiencing COVID-19 symptoms and are seeking a medical diagnosis.
  • Are attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster.
  • Have symptoms or are caring for a family member who has symptoms related to a COVID-19 vaccine or vaccine booster.
  • Are caring for a covered family member who is subject to a quarantine or isolation related to COVID-19 or have been advised by a health care provider to quarantine due to COVID-19 and/or are caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.

An employee can choose how many hours to take, up to the maximum of 40, and the employer must make those hours available immediately upon the employee’s written or oral request. For the purpose of the new leave, “family member” is defined by the Healthy Workplaces, Healthy Families Act of 2014 (section 245.5).

The employer can, however, limit the total supplemental leave they provide per vaccine or booster to either three days or 24 hours (depending on the employee’s typical work schedule), unless the employee provides verification from a health care provider that the employee or their family member is continuing to experience symptoms. 

Additional 40 hours supplemental leave with proof of positive COVID-19 test

If a covered employee or a family member of a covered employee tests positive for COVID-19 and the covered employee provides their employer with proof of the positive test result (day five or later from the initial positive test), the employee is entitled to up to 40 additional hours of supplemental paid sick leave.

The bill’s text specifies that “the employer has no obligation to provide additional COVID-19 supplemental paid sick leave if the employee refuses to provide documentation of a test result.” The employer may require the employee to receive another test on or after the fifth day after the first positive test and provide documentation of those results.

The bill provides details on calculating compensation for exempt and nonexempt employees or employees who work regular weekly hours versus variable hours. Restoration of business tax credits passed in a separate budget action may help employers offset the costs of complying with the leave. 

Again, only dentists and other employers in California that employ at least 26 employees are required to comply with the new COVID-19 supplemental paid sick leave. Impacted CDA members can contact the CDA Practice Support team with questions. 

CDA will continue to update members as additional guidance is published. For employment laws and regulations affecting California dentists, see the CDA Practice Support resource library. 

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