On September 9, 2020, Governor Newsom signed AB 1867, a bill that immediately expands supplemental paid sick leave for COVID-19-related reasons for certain employers not already covered by existing leaves.
Early in the pandemic, there was talk of creating more COVID-19-related paid leave requirements to fill the “gaps” left by the Families First Coronavirus Response Act (FFCRA), the federal law that requires COVID-19-related paid sick leave for employers with fewer than 500 employees. Initially, the Governor took executive action, creating supplemental paid sick leave for food sector workers with Executive Order N-51-20. Now, AB 1867 will codify the Executive Order but also expand COVID-19-related paid sick leave far beyond the food sector. Here is a brief summary of the new law’s requirements.
In addition to food sector employers covered by Executive Order N-51-20, AB 1867 broadly expands the leave coverage, requiring all employers with 500 or more employees in the United States to provide COVID-19 supplemental paid sick leave to their California employees. It also extends those requirements to health care providers and first responders whose employers elected to exclude them from FFCRA leave requirements.
Employees who work for covered employers can take COVID-19 supplemental paid sick leave if the worker is:
- Subject to a federal, state or local quarantine or isolation order related to COVID-19.
- Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
- Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.
Employees are not eligible for supplemental paid sick leave if they work from home.
Leave Amounts and Pay
Full-time employees are eligible for 80 hours of COVID-19 supplemental paid sick leave. “Full-time” means the employee was either scheduled to work 40 hours per week or worked, on average, at least 40 hours per week during two weeks prior to taking leave.
Part-time employees are eligible for an amount of leave equal to the number of hours they’re normally scheduled to work in two weeks. If an employee works a varying schedule, they’re entitled to hours equal to 14 times the average number of hours the employee worked each day in the prior six months, or over the total time of employment if less than six months.
The law contains a special provision for firefighters. Firefighters scheduled to work more than 80 hours in the two weeks prior to taking leave are entitled to the total number of hours they were scheduled to work in those two weeks.
Employers must pay employees the highest of either the employee’s regular rate of pay for their last pay period, the state minimum wage or the applicable local minimum wage. The amount of pay is capped at $511 per day and $5,110 total per employee.
Interactions with Other Leaves
This leave is provided in addition to already existing paid sick leave under California Labor Code Sec. 246.
An employer may not require an employee to use other paid or unpaid leaves before the employee uses COVID-19 supplemental paid sick leave.
Employers who have already provided leave under Executive Order N-51-20 don’t need to provide additional leave under this law. Additionally, employers may not be required to provide additional leave under this law if they already provided comparable COVID-19 specific paid sick leave under federal or local laws, or under their own policies. This issue may become increasingly complicated as more local ordinances are passing COVID-19 supplemental paid sick leave measures. Employers subject to local ordinances should consult with legal counsel on their obligations under those ordinances and this new law.
By seven days after enactment, the California Labor Commissioner will publish a model notice to provide to employees. Employers can send the notice electronically to employees who are telecommuting.
AB 1867 is a budget trailer bill, meaning it went into effect immediately when signed on September 9, 2020. But the new supplemental paid sick leave provisions will take effect “not later than 10 days” after enactment, meaning covered employers must begin providing this new leave no later than September 19, 2020. This gives employers very little time to comply with the new law.
The COVID-19 supplemental sick leave has a sunset provision, expiring on December 31, 2020, or upon the expiration of any federal extension of the federal emergency paid sick leave provisions under the FFCRA, whichever is later.
Final Thoughts for Employers
Even with the 10-day delay, employers potentially covered by AB 1867 will need to take quick action to ensure compliance. Employers should consult with legal counsel with any coverage, eligibility and leave interaction questions. Covered employers will also need to ensure they update eligible employees’ wage statements to reflect the new paid sick leave.