First of all: Can I claim COVID-19 sick pay beyond the official deadline of Dec. 31?
The short answer: Yes, if you began claiming the sick leave on or before the deadline.
Supplemental Paid Sick Leave for COVID-19was officially extended under state law through Dec. 31, 2022, beyond its original expiration date of Sept. 30. So what if you're in the middle of claiming this leave when the law expires on Dec. 31 — for example, if you test positive for COVID on Dec. 30 and start claiming COVID sick pay?
This means that as long you're already claiming this leave on or before Dec. 31, you can finish taking the amount you're entitled to — up to 80 hours — into January. But if you try to claim COVID sick leave on Jan. 1 or after, you'll be denied.
Practically, this means that if it's late December and you suspect you may have caught COVID over the holidays (or been exposed to someone who has it), it's important that you test for the virus as soon as you're able and start claiming COVID sick pay before Dec. 31 is up. You may consider making sure your household has enough rapid antigen tests at this time, to make sure you're able to access a test in time.
This year, Dec. 31 falls on a Saturday, so if you're right up against the deadline and your organization doesn't work on the weekends, be extra sure to document your request for claiming COVID sick pay in writing. This could look like an email or a text message sent to your employer, which will show you did indeed begin your claim for COVID leave before the deadline.
What if you're on PTO over the holidays when you need to start claiming COVID sick pay — either because you've tested positive for COVID, or for another COVID-related reason valid for claiming COVID sick pay? That's fine: Tell your employer you are canceling your upcoming PTO, and that you'll be claiming COVID sick leave instead. You do not need to stay on PTO to stay out of work.
No, this is a different type of paid leave. California's exclusion pay is mandated by Cal/OSHA, and relates specifically to COVID-positive workers who present an in-person infection risk to their colleagues.
State regulations require businesses to "exclude" employees who’ve tested positive for COVID-19 and others who’ve been in close contact with positive cases at work until they are no longer an infection risk.
What are other ways exclusion pay is different? Unlike the state's COVID sick pay, exclusion pay applies only when the potential COVID exposure happens at your workplace. Also, the Cal/OSHA rule applies in almost every workplace in the state, including offices, factories and retail businesses — but COVID sick pay applies only to companies that employ 26 or more people. Read more about exclusion pay.
If you believe you got COVID-19 at your workplace, then you can file for workers' compensation, which can cover the costs of medical care, lost income while you’re out sick and even transportation expenses. Learn how the workers' compensation process works.
Can I claim COVID sick leave if I work from home?
Yes. This COVID sick leave applies to everyone who tests positive for COVID, and works for a business that employs 26 or more people — regardless of whether they work from home or in an in-person setting.
The paid leave is intended to grant you time off work to recover from your COVID infection, no matter where you do that work.
Remember, COVID sick pay also covers a number of other situations that aren't about getting COVID yourself, like needing time off to get vaccinated against the coronavirus, or caring for a family member with COVID. These situations all qualify for sick pay, regardless of whether you work in an in-person setting or work from home. Read more about the reasons you can claim COVID sick pay.
Unlike the 2021 version, this new bill splits those hours into two types (or "banks") of up to 40 hours each — and which bank you draw from will depend on why you’re claiming these hours.
Bank A: The more flexible option, offering up to 40 hours
This bank is more flexible, because you can use these 40 hours for a wide range of COVID-related reasons, like:
You have COVID.
A family member has COVID and you need to care for them.
You need to attend a vaccination appointment (includes boosters).
You need to recover from getting vaccinated (includes boosters).
You need to take care of a family member who needs to get a vaccination, or recover from a vaccination or booster.
You need to take care of a child who cannot attend school because of virus-related closures or quarantines.
Steve Smith, communications director at the California Labor Federation, said it’s helpful to think of Bank A as the one that’s "pretty broad in terms of how applicable it is to many different situations that would cause workers to miss work as a result of COVID."
One important thing to note about using Bank A to claim hours for you or a family member to get a COVID vaccine or a booster, or recover from getting a vaccine or a booster: For each vaccine or booster, your employer can limit the number of hours you can claim to 24 working hours (or three days). To claim more leave in this situation, you’ll need a note from a health care provider that verifies that you or the family member is continuing to experience symptoms related to the vaccine or booster.
Bank B: The less flexible option, also offering up to 40 hours
The other type of paid COVID sick leave — Bank B — is more restrictive, as these hours can only be accessed when you or a loved one has COVID.
In order to draw hours from Bank B, you will need to prove to your employer that you or someone in your family has tested positive, by submitting proof of that positive test result. Your employer may ask you to provide more than one test result, depending on how much paid sick leave you're claiming.
Think of Bank A and Bank B as two separate doors that allow you to access paid COVID sick leave — except that you need a key (a positive test result for COVID) to open the Bank B door.
Remember, if you've already claimed California COVID sick pay in 2022, this extension of the law does not "reset the clock" on the hours you can claim. If you're eligible, you'll have access to up to 80 hours of paid sick leave minus whatever you've already claimed since Jan. 1.
Do I need to use up all my paid sick leave from Bank A before drawing from Bank B?
No — you can draw from either bank at any time, depending on the reason for needing it. "You can use both banks in the same week potentially," Smith confirmed.
A full-time worker tests positive for COVID-19 in March. The worker takes three days, or 24 hours, of time off to recover and submits a positive test to their employer, which allows the employee to take this sick leave from Bank B.
A few weeks later, the worker’s daughter needs to go to a vaccine appointment. The worker uses one day, or eight hours, from Bank A to take the child to the appointment and another eight hours the next day, also from Bank A, to care for the child, who wakes up with flu-like symptoms.
In June, the worker’s father catches COVID-19. Now the worker uses their last two days from Bank B to care for their parent. The employer may require the worker to provide a positive test from the father.
After two days, the worker’s father is still really sick. The worker has three days, or 24 hours, of Bank A left to care for their parent.
How should I request COVID-19 sick leave from my boss through Dec. 31?
Before you talk to your employer about COVID-19 sick leave, know which bank you’ll be drawing hours from and make sure that you’re choosing the right one for your situation. Remember, each bank can be accessed only in specific circumstances.
Veronica Chavez, interim workers' rights directing attorney at Centro Legal de la Raza, a legal services nonprofit in Oakland, offers a list of several things a worker should have in mind when deciding which bank to draw from.
If you’re taking time off because you tested positive on a COVID test, it’s possible (and lawful) for your employer to request proof of your positive result. You should decide ahead of time how you can show your employer your results — even if you used a home test kit — and think about making it as straightforward as possible for them. "(Be) aware of what sort of request you're making," Chavez said. "What information might the employer need that would assist them in more readily approving the process?"
Remember that you don’t need to exhaust one bank of hours before withdrawing from the other. So if you have previously taken some hours from Bank A, you can still access Bank B if you need to, even if you still have hours left in Bank A. "There is no order for these banks," Chavez explained. "A person has both of these available."
If you’re planning to request hours from both banks — let’s say you’re going to get vaccinated and you need to take some time to care for a loved one who’s tested positive — you should keep a clear record of how many hours you’ll need, and on what days you’ll be using these hours.
Chavez recommends "having the request in writing," which could look like an email or a text message. You can also ask for these hours via a verbal conversation with your boss, but be aware: That could make it harder for you to get compensated if your employer later says they don’t remember approving those hours or that you don’t qualify. Also, if the Dec. 31 deadline to start claiming COVID sick pay is drawing near, you want to have proof that you began that leave claim before or on Dec. 31 itself — so an employer can't deny you the sick pay by claiming you were too late to request it.
Can I claim this new COVID sick leave retroactively?
Yes. If you took paid time off or sick leave for COVID-related reasons anytime on or after Jan. 1, 2022, but before the COVID sick pay policy came into effect on February 19, you can claim those hours back from your employer. This also applies to any unpaid sick leave you took on or after January 1, for which you can now "either get paid for that time or get credited those sick days that you used," said Steve Smith of the California Labor Federation.
Any hours you claim retroactively can be drawn from either bank. However, keep in mind that if you choose to take hours from Bank B, you may still have to verify with your employer that you or a loved one was sick with COVID when you took unpaid sick leave, and provide a positive test from that period. Your employer may require more than one positive test, depending on how many hours of paid leave you're claiming.
What if I don't work full-time?
These two banks of COVID sick leave are framed as up to 40 hours each — up to 80 hours total — because that’s the maximum amount you can claim based on a full-time work schedule. If you don’t work full-time, explains Smith, "the leave is prorated based on how many hours a week you do work" by looking at the number of hours a week you worked over the last six months.
"If you work less than six months, then the equation is a little bit different," said Smith, who adds that the Department of Industrial Relations will soon release guidelines for part-time workers on accessing their COVID sick leave.
If I can use this COVID sick leave if a member of my family needs my care, who counts as 'my family'?
"This is one of the areas of the law that I think has the potential to be a little complicated," said Smith.
He says that a family member is "typically described as someone living in your household" — but acknowledges that those kinds of definitions definitely have become more fluid during the pandemic, as unrelated people quarantine or isolate together in the same home. Smith also uses the example of a parent who doesn’t live in your home full-time, but requires your care — either in your home or theirs — because they have COVID.
If I need to provide a positive COVID test for me or a family member to access Bank B of COVID sick leave, what kind of test is acceptable?
Smith says right now, it appears either a PCR test or an antigen test will be accepted by employers — and that at-home antigen tests also are acceptable.
Since you can use both Bank A and Bank B of COVID sick leave if you or a family member gets COVID, Smith notes that you may need to provide a second positive test to be able to access your Bank B hours if you’ve already exhausted your hours from Bank A.
"So we think it's a good rule of thumb for workers to get tested as soon as they show symptoms, and then to get tested again if they're still feeling ill heading into that second week," he said.
Smith also notes that the new sick leave bill leaves out workers who are "classified as independent contractors, even though they may not actually be independent in the truest sense of the word" — like gig workers.
If you’re not able to access COVID sick leave, check whether your city or county has its own program offering financial support to people losing work due to COVID. Unfortunately, many of these pandemic programs are no longer in effect: San Francisco’s Right to Recover program, for example, offered funds to residents who tested positive for COVID and couldn't work during their recovery, but is now unavailable.
I spoke to my employer and they're giving me a hard time. What should I do?
If you need to be excluded from your workplace and your employer is telling you to use COVID sick leave ...
California requires businesses to "exclude" employees who’ve tested positive for COVID-19 and others who’ve been in close contact with positive cases at work until they are no longer an infection risk. And Centro Legal de la Raza's Veronica Chavez says that the last time COVID sick leave was available in California, she saw employers telling their workers to use up their sick leave hours when they needed to be excluded from the workplace.
But Chavez explains that exclusion and COVID sick leave are two separate things. "A person should be able to get paid exclusion pay if the employer tells them to stay home because there was someone (who tested positive) at the workplace," she said. "They should still have both of their 40-hour banks intact."
If your boss is telling you to use up your regular sick leave first ...
Chavez says she's also seen businesses tell their workers who caught COVID outside of work to first use up their regular sick leave before touching their COVID sick pay — which "should not be the case," she said. "For COVID-related illnesses or an exposure, a person should be able to use the supplemental (COVID) sick leave, so that the other (sick leave) is simply used for other illnesses."
If your employer insists you don't need to use COVID sick pay because you work from home ...
Even if your human resources department isn't outright denying you COVID sick leave, unfortunately you may find that you're being discouraged one way or another from claiming it — especially if you work from home.
You could find your employer pressuring you to keep "working through" your COVID infection at home, or to otherwise limit the amount of days you claim as paid COVID sick leave.
Remember, unless you work in a health care setting, it's unlikely your employer or their HR department are themselves medical professionals, and they're not privy to your medical history or risk level. Therefore, the amount of time your employer thinks you "should" claim as COVID sick leave — or comparing it to the amount of time other employees have taken to recover from COVID — is irrelevant here. If you need advice, and have access to health care, consult your doctor on how long you should stay off work because you have COVID.
If your employer says their business is too small for you to claim COVID sick leave ...
Although COVID sick leave is available only to people in California who work for an employer of 26 or more people, Chavez points out that the law doesn’t require these 26 or more workers to all be located in California.
"The law only covers employers who have 26-plus employees nationwide," she said. "It’s not just the one office (in California)." So if your company employs people in several states, it’s probably a good idea to check the total size of their workforce across the country — because that total number could be 26 or higher.
If your boss says that they don't have to provide COVID sick leave beyond Sept. 30 ...
"If they continue to push back even after seeing something pretty official from a state agency, I would recommend contacting an attorney," Chavez said. She notes that several legal aid clinics in the Bay Area offer assistance for free and can help you file a claim with the Labor Commissioner’s Office.
If you're worried about pushing back against your employer ...
Chavez understands that some workers may feel nervous about having these complicated conversations, especially if they fear that their employer will retaliate against them by cutting their wages or hours, or firing them.
If you're still hesitant about filing a formal complaint when your employer refuses to accommodate your sick leave request or if you haven't heard back from the Labor Commissioner's Office, you have other options.
There have been a few instances where Chavez and her office have helped workers secure COVID sick leave by writing a letter to the employer. "Turn to attorneys or someone who's willing to assist with a letter where they can put it in language from the law that states very clearly what the employer is required to do," she said.
Here are some organizations that offer free legal aid to workers in the Bay Area: