California Does It Again: Paid Sick Leave Expanded For COVID-19

Governor Gavin Newsom signed Assembly Bill 1867 on September 9, 2020. It extends 80 hours of COVID-19 supplemental paid sick leave to employees not provided with paid sick leave under the federal Families First Coronavirus Response Act (“FFCRA”). AB 1867 also codifies Executive Order N-51-20, which Governor Newsom signed on April 16, 2020, providing supplemental paid sick leave to food sector workers.

According to a press release from Governor Newsom’s office, AB 1867 “closes the gaps in paid sick days provided in federal law and the Governor’s Executive Order by including employers with over 500 employees and public and private employers of first responders and health care employees who opted not to cover their employees under federal law.” The new paid sick leave is in addition to paid sick leave that California law already required.

The new legislation was effective immediately. However, the expanded paid sick leave provisions will take effect “not later than 10 days” after signing, or September 19, 2020. AB 1867 expires on December 31, 2020, or upon the expiration of any federal extension of the emergency paid sick leave provisions in the FFCRA, whichever is later.

How Did We Get Here?

As of April 1, 2020, federal law under the FFCRA required employers with fewer than 500 employees to provide emergency paid sick leave benefits to employees not able to work because of reasons related to COVID-19. That same month, determining that “many food sector workers continue to lack access to paid sick leave,” Governor Newsom signed the executive order to mandate additional paid sick leave for food sector and agricultural workers whom the FFCRA did not cover.

Additionally, some cities in California passed their own COVID-19 related emergency paid sick leave ordinances. They included the cities of Los Angeles, San Francisco, Oakland, San Jose, Long Beach, Sacramento, and Santa Rosa, as well as Los Angeles and San Mateo counties, where the county ordinances apply in unincorporated areas. In general, these local ordinances also aimed to cover employees of larger employers whom the FFCRA did not cover.

Who Is Covered by California’s COVID-19 Supplemental Paid Sick Leave?

AB 1867 applies to private employers with 500 or more employees in the United States, the District of Columbia, or any Territory or possession of the United States. It looks to federal regulations to determine the number of employees that the hiring entity employs: (a) all employees currently employed, regardless of how long those employees have worked for the employer; (b) any employees on leave of any kind; (c) employees of temporary placement agencies who are jointly employed under the federal Fair Labor Standards Act; or (d) day laborers supplied by a temporary placement agency.

Additionally, AB 1867 also applies to any entity, including a public entity, that is subject to the FFCRA and that elected to exclude health care providers or emergency responder employees from the FFCRA’s emergency paid sick leave requirements. There is no requirement for a minimum number of employees for these employers.

How Can Supplemental Paid Sick Leave Be Used?

A covered employer must provide COVID-19 supplemental paid sick leave to each covered employee who must leave their home to perform work if that covered employee is unable to work because of any of the following reasons:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

How Much Supplemental Paid Sick Leave?

A full-time employee is eligible for up to 80 hours of COVID-19 supplemental paid sick leave.  Such an employee is someone whom the employer considers ‘full time,’ or an employee who ‘worked, or was scheduled to work, on average, at least 40 hours per week’ in the two weeks before the employee takes supplemental paid leave.

However, if the worker is part-time, the amount of leave depends on the worker’s schedule. If the individual has a “normal weekly schedule,” the number of hours available is “the total number of hours the covered worker is normally scheduled to work for the hiring entity over two weeks.” If the part-time employee’s schedule varies, then the available sick leave is ‘14 times the average number of hours’ the employee worked each day in the preceding six months. If the part-time employee has worked for the hiring entity for fewer than six months, this calculation would be done over the entire period that they have worked for the hiring entity. Yet, if the part-time employee worked for the hiring entity for over a period of 14 days or less, this calculation would be done over the total number of hours the part-time employee worked.

Importantly, any of this COVID-19 supplemental paid sick leave is in addition to paid sick leave that California state law already required that employers provide.

What is the Process for Using Supplemental Paid Sick Leave?

Individual workers, not the employer, may determine how many hours of paid sick leave they wish to use, up to the maximum amount of leave for which they are eligible. This COVID-19 supplemental paid sick leave is available for immediate use upon oral or written request. Employers cannot require employees to use other available paid or unpaid time off, such as vacation or other accrued paid sick leave, before using this supplemental paid sick leave.

If AB 1867 expires while an employee is taking supplemental paid sick leave, the employee will be permitted to finish taking the full amount of available supplemental paid sick leave for which he or she was eligible.

Is There Any Relief for Employers Who Previously Provided Supplemental Paid Sick Leave?

Employers who already provided supplemental paid sick leave for any of the COVID-19 related reasons listed above may count those hours toward the total number of hours of supplemental paid sick leave under AB 1867. This situation occurs when the employer already compensated the employee in an amount equal to or greater than the amount of compensation required under AB 1867.

If an employer provided supplemental paid sick leave for any of the COVID-19 related reasons listed above, but did not compensate its employees in an amount equal to or greater than the compensation required under AB 1867, the employer may retroactively provide supplemental pay to the employee to satisfy AB 1867’s compensation requirements. This approach will allow an employer to count those hours towards the total number of hours available under AB 1867.

What Does an Employer Have to Pay?

Workers who use this supplemental paid sick leave are compensated “at a rate equal to the highest of:

• The individual’s regular rate of pay for the last pay period;
• The state minimum wage; or
• The local minimum wage to which the employee is entitled.

Tracking the federal FFCRA, the amount an individual may receive in supplemental paid sick leave cannot exceed $511 per day or $5,110 in the aggregate.

Notice Requirements

Employers covered by AB 1867 must display a poster in a conspicuous place that contains information about the COVID-19 supplemental paid sick leave. If covered employees do not frequent a workplace (which may happen in many cases as a result of remote working), an employer may satisfy the notice requirement by disseminating notice through electronic means. Here is a link to the poster that the Labor Commissioner posted for non-food-sector employees. Here is a link to the poster that the Labor Commissioner posted for food-sector employees.

Employers also must provide notice in employees’ wage statements, including the amount of COVID-19 supplemental paid sick leave available for each pay period.

Enforcement

The California Labor Commissioner will be responsible for enforcing AB 1867, as that agency also enforces California’s general paid sick leave mandate. An employee may file a complaint with the Labor Commissioner for any alleged violation. The Labor Commissioner may order “any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty to an employee or other person whose rights under this article were violated.” The administrative penalty if COVID-19 supplemental paid sick leave is unlawfully withheld may subject an employer to a penalty of at least $250 per day, but not to exceed $4,000 in the aggregate.

Takeaways

AB 1867 is yet another governmental effort to provide paid leave to California workers adversely impacted by the COVID-19 pandemic. Importantly, on a statewide basis, AB 1867 expands supplemental sick leave COVID-19 related reasons to a broad scope of employees who previously were not eligible under the federal FFCRA. Employers covered by the new law need to take steps immediately to comply, including the posting and notice requirement. Some employers, who possibly may be covered based on the number of the employees depending on the calculation, should determine immediately whether the new law applies to them. As with other leave requirements involving COVID-19, employers also should consult with their employment law counsel for guidance on any questions or issues in order to comply fully.