Kamin: Could Employer-Mandated COVID Sick Pay Become a Thing of the Past in 2023?

Tuesday, December 20, 2022 | 0

Based on recent statutory and regulatory changes, it is very possible that employers will no longer be liable for COVID sick pay in 2023 and beyond.

John P. Kamin

Cal-OSHA’s board agreed to send a new set of proposed regulations to the Office of Administrative Law during its Dec. 15 meeting. The proposed regs no longer contain a requirement for employers to maintain an employee’s earnings if he is excluded from the workplace due to industrial exposure to COVID-19.

But employers must not celebrate just yet; that doesn’t become the law until the OAL approves that proposal. Until then, Cal-OSHA’s emergency temporary standards are still in effect, and those do require an employer to maintain an employee’s wages if he misses work due to industrial COVID exposure.

What about non-industrial COVID exposure?

As we noted earlier this year, SB 114 (and later AB 152) provided up to 80 hours of COVID sick leave, regardless of how a person caught it. Generally speaking, the first 40 hours were mandated by law with a cap of $511/day, and the employee could get COVID sick pay for a second 40 hours if he provided the employer with a positive test (described in greater detail here).

Guess what? That expires on Dec. 31.

What happens in 2023?

Good question! Please recall that in February 2022, Gov. Gavin Newsom passed SB 114, which was retroactive to Jan. 1, 2022.

Will he do that again in 2023? It’s possible. However, what is different this time around is that a few months ago, the governor announced that he intended to end the COVID-19 state of emergency on Feb. 28, 2023.

Right now, we simply do not know if Newsom intends to reinstate COVID sick pay or not. We will simply have to wait and see.

What else do those Cal-OSHA regs say?

The latest proposal submitted to OAL requires employers to:

• Maintain a written COVID prevention plan.
• Provide COVID-19 testing available at no cost, during work, after a close contact.
• Implement improved ventilation methods in accordance with state guidelines.

It also contains updates to the definition of “infectious period” and “close contact.”

Conclusion

We will have to see if the OAL approves the new regulations. If the OAL does approve them in January, then 2023 could have no COVID sick pay with the new Cal-OSHA changes and the expiration of SB 114.

But until Dec. 31, at least, SB 114’s sick leave provisions are still in effect. So with things the way they are, our general guidance is that employers should pay COVID sick pay at least until New Year's Eve.

In the meantime, stay tuned. We will do another update on this rapidly evolving regulatory and statutory landscape in January 2023.

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.