California Enacts New Law Requiring Large Employers to Provide Supplemental COVID-19 Paid Sick Leave

Topics: COVID-19, Employee Leave

On Wednesday, Governor Newsom signed AB 1867 into law.  This new law is effective immediately (no later than 10 days after enactment) as urgency legislation.  The new law essentially seeks to fill the gap left by the Families First Coronavirus Response Act (FFCRA) (which only applies to private sector employers with fewer than 500 employees) by requiring private sector employers with 500 or more employees in the United States to provide up to 80 hours of supplemental paid sick leave to employees who leave their homes to perform work.  The new law also provides paid sick leave benefits for health care providers and emergency responders who employers with less than 500 employees were permitted to exempt from the FFCRA’s paid sick leave provisions.  Finally, the new law provides certain additional protections for food sector workers.  Here are the details:

Amount of Leave

Full-time employees:  The bill requires covered employers to provide 80 hours of supplemental paid sick leave to full-time employees. 

Part-time employees:  Entitled to supplemental paid sick leave as follows:

(i) If the employee has a normal weekly schedule, the total number of hours the employee is normally scheduled to work over two weeks.
(ii) If the employee works a variable number of hours, 14 times the average number of hours the employee worked each day in the six months preceding the date the covered worker took COVID-19 supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the employee has worked.
(iii) If the employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the total number of hours the employee has worked for the employer.

Note: the bill includes special rules for active firefighters.

Reasons Supplemental Paid Sick Leave May Be Used

Supplemental paid sick leave may be used for the following reasons:

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

Employees may decide how much leave to use and the sick leave must be provided upon an employee’s oral or written request.  The bill does not indicate what, if any, supporting documentation may be required to substantiate the need to take sick leave.

Offset for Other Paid Sick Leave Provided by Employer

Paid sick leave already provided by an employer pursuant to state and city normal paid sick leave laws (i.e. pre-COVID sick leave laws) may not be counted toward an employer’s obligation to provide supplemental COVID-sick leave under the new law.  However, if an employer has already provided supplemental COVID paid sick leave pursuant to federal, state, or local laws (e.g. supplemental sick leave ordinances in cities such as Los Angeles, San Francisco, Oakland, San Jose, Santa Rosa, Sacramento, Long Beach), that leave may be counted toward satisfying the employer’s supplemental paid sick leave obligations under the new law, provided that the employer’s supplemental COVID sick leave may be used for the reasons outlined above and the pay is at least the same or more than required by the new law (discussed below).  Notably, if an employer has provided (and an employee has used) supplemental COVID paid sick leave since March 4, 2020, but the pay was lower than required by this new law, the employer may simply supplement the employee’s pay to make up the difference, in which case the hours will count toward satisfying the new sick leave requirements.

Employees may not be required to use other forms of paid time off (or unpaid time off) prior to utilizing the supplemental paid sick leave provided under the new law.

Amount of Pay

Supplemental paid sick leave must be compensated at a rate equal to the highest of the following, subject to a cap of $511 per day or $5,110 in the aggregate:

(i) The employee’s regular rate of pay for the last pay period, including pursuant to any collective bargaining agreement that applies.
(ii) The state minimum wage.
(iii) The local minimum wage to which the employee is entitled.

Note: There are some exceptions for active firefighters.

Posting Requirement

The bill requires the Labor Commissioner to prepare a model notice for employers to use within 7 days following the bill’s enactment into law.  If employees are not frequenting the workplace, the employer may satisfy its notice obligation by communicating the notice electronically, e.g. through email. 

Pay Stub Requirements

The bill itself does not contain any new pay stub requirements.  However, it incorporates certain provisions of the existing CA sick leave law, including its pay stub requirement (Labor Code 246(i)).  Labor Code section 246(i) states that employers must provide employees with written notice of the amount of paid sick leave they have available on their itemized wage statement, or in a separate writing provided on the designated pay date with the payment of wages.  This requirement also applies to supplemental COVID paid sick leave.  The pay stub requirement is effective on the first full pay period following enactment of the new law. 

Effective Date and Expiration

The new law takes effect “not later than 10 days after enactment.”  It expires December 31, 2020 or upon the expiration of any federal extension of the FFCRA, whichever is later.

Food Sector Workers

The new law provides similar supplemental paid sick leave for food sector workers (including delivery drivers) who work for an entity that has 500 or more employees in the United States.  Supplemental COVID paid sick leave that has already been provided under federal, state (including the Governor’s executive order providing supplemental paid sick leave for food sector workers) or local law counts toward the supplemental paid sick leave required under the new law provided the prior leave could be used for the same reasons specified in the new law.  The new law also requires that food sector workers who work in a food facility be permitted to wash their hands every 30 minutes and additionally as needed.