On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which, among other things, provides COVID-19 supplemental paid sick leave for every California employee who is not otherwise covered by the Families First Coronavirus Response Act (“FFCRA”). The law applies to employers with over 500 employees as well as public and private employers of emergency responders and health care employees who elected to exclude these employees from emergency paid sick leave under the FFCRA. Covered employers must provide this leave no later than September 19, 2020. The law will remain in effect through December 31, 2020 or upon the expiration of any federal extension of the FFCRA, whichever is later. However, any employee who is out on COVID-19 supplemental paid sick leave at the time the law expires will be allowed to take the full amount of leave to which they are entitled.
Qualifying Reasons for COVID-19 Supplemental Paid Sick Leave
The law mandates that a covered employer provide supplemental paid sick leave if an employee is unable to work for any of the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
- The employee is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
Amount of Leave
Full time employees, or those scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee seeks to use the paid sick leave, are entitled to 80 hours of leave. Employees who do not work full time and have a normal weekly schedule are entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks. Employees who work a variable number of hours are entitled to 14 times the average number of hours the employee worked each day for the hiring entity in the six months preceding the leave. If the employee has worked for the employer less than six months but more than 14 days, this calculation is instead made over the entire period the employee has worked for the employer.
COVID-19 supplemental paid sick leave must be compensated at a rate equal to the highest of the following: (1) the employee’s regular rate of pay; (2) the state minimum wage; or (3) applicable local minimum wage. Pay for COVID-19 supplemental paid sick leave is capped at $511 per day or $5,110 in the aggregate.
Covered employers are required to post a notice poster in workplaces or, if employees are not at the worksite, provide it to them electronically. In addition, covered employers must include information regarding employees’ COVID-19 supplemental paid sick leave balances in the same manner as for non-COVID-19 supplemental paid sick leave, in accordance with California Labor Code Section 246(i), beginning the first full pay period after September 9, 2020.
Interaction of COVID-19 Supplemental Paid Sick Leave and Existing Leave Policies
Covered 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 or in lieu of COVID-19 supplemental paid sick leave. However, employers who already provide employees with COVID-19 supplemental paid sick leave that is payable for the qualifying reasons listed above that would compensate the worker in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave—including leave provided pursuant to federal or local law—may count those hours towards the hours required under this new law. Additionally, if the employer already provided supplemental paid leave between March 4, 2020 and the effective date of this law, but did not compensate the employee in an amount equal to or greater than the COVID-19 supplemental paid sick leave, the employer may retroactively provide supplemental pay to the worker to satisfy its obligations.
Additional Considerations for Food Sector Employees
The law also codifies Governor Newsom’s Executive Order N-51-20 issued on April 16, 2020, creating new California Labor Code 248.
Employers in California should take this opportunity to revisit their paid sick leave policies to confirm that they are in compliance with all federal, state, and local emergency paid sick leave laws. If you have any questions or would like more information, feel free to contact us.