Hill, Farrer & Burrill LLP

Employment Updates

California Legislation Regarding Supplemental Paid Sick Leave Relating to COVID-19

On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which requires employers to provide supplemental paid sick leave to the following individuals for reasons relating to COVID-19: (1) food sector employees employed by employers with 500 or more employees in the United States[1]; (2) certain health care providers or emergency responders that employers chose to exempt from the requirements of the federal Families First Coronavirus Response Act (“FFCRA”) pursuant to the FFCRA; and (3) employees employed by private businesses employing 500 or more employees.[2]

This law expires on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.[3]

Qualifying Reasons for Leave:

An employee can take leave under this new law for the following qualifying 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.

Amount of Leave:

Qualifying employees are entitled to 80 hours of supplemental paid sick leave if the employee works full time or if the employee worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date of the leave.[4]  Otherwise, the employee is entitled to take leave in the amount of the hours the employee is normally scheduled to work, or if the employee has a variable schedule, 14 times the average number of hours the employee worked each day in the six months preceding the leave.[5]

Rate of Pay:

The employee should be paid at their regular rate, or the state or local minimum wage, whichever is higher.  However, there is a cap of $510 per day, or $5,110 in the aggregate.  Unlike the FFCRA, this new California law does not offer tax relief for the paid leave required under this law.

Relationship Between AB 1867 and Other Leave Laws:

An employer shall not require an employee to use any other type of leave before using this supplemental paid sick leave or in lieu of the supplemental paid sick leave.  However, if the employer already provides the employee with supplemental paid leave for COVID-19, the employer may count the hours of the COVID-19 paid benefit or leave towards the total number of hours of supplemental paid sick leave required under this new law.

Pay Statements:

Employers must update pay statements to include a line item for the amount of supplemental paid leave available each pay period or provide a separate writing that includes this information.  Employers must comply with all recordkeeping requirements and must retain records documenting hours worked, leave accrued, and leave used by the employee for three years.

Notice Requirements:

Pursuant to this new law, employers are required to post a notice to be prepared by the Labor Commissioner relating to this supplemental paid sick leave.  If employees do not frequent the workplace, employers can satisfy the notice requirement by disseminating the notice electronically.

Retroactivity:

For employers in the food sector, this new law applies retroactively to April 16, 2020.

Damages/Penalties:

An employer that violates this law will be liable for reinstatement, backpay, the payment of sick days unlawfully withheld, penalties in the amount of three times the dollar amount of paid sick days unlawfully withheld or $250, whichever is greater, not to exceed an aggregate penalty of $4,000, attorneys’ fees, and costs.  If the violation results in additional harm to the employee, including termination of employment, the employee is entitled to additional penalties.  The employer may also be required to pay additional penalties if the Labor Commissioner takes any action to enforce compliance with this law.  The employee may also seek penalties under the Private Attorneys’ General Act (“PAGA”) on behalf of other aggrieved employees.

Other:

The law also (1) establishes a small employer family leave mediation program that will go into effect if SB 1383 is approved by the Governor; and (2) codifies existing COVID-19 handwashing requirements set forth in Executive Order 51-20 that require food sector employers to permit employees to be able to wash their hands every 30 minutes and additionally as needed.

[1] Employers with 500+ employees were already required to provide paid leave to food sector employees pursuant to Executive Order 51-20.  AB 1867 codifies employers’ obligations under this Executive Order.

[2] In lieu of the terms “employer” and “employee,” AB 1867 uses the terms “hiring entity” and “worker,” which suggests that the bill may interpreted to apply to independent contractors.

[3] An employee taking supplemental paid sick leave at the time this new law expires shall be entitled to take the full amount of supplemental leave.

[4] Note, however, that firefighters scheduled to work in excess of 80 hours in the two weeks preceding the leave may be entitled to more than 80 hours of supplemental paid leave.

[5] If the employee works a variable schedule and has worked for the employer for less than 6 months, the employee is entitled to leave in the amount of fourteen times the average number of hours the employee worked per day since the commencement of employment.