Just last week, Governor Gavin Newsom signed into law Assembly Bill 1867 (Click Here) which is intended to fill the gaps in available paid sick leave for employees impacted by COVID-19. The bill requires covered employers to provide COVID-19 supplemental paid sick leave to their California employees beginning no later than September 19, 2020. For all qualifying employers, employee wage statements must be updated by your next full pay period!
The following FAQ explains which employers are covered by this new law and how much paid sick leave must be provided.
Q. Which employers are impacted by the new bill?
A. The following employers must follow this new law:
- All private employers with 500 or more employees.
- All employers of health care providers and emergency responders (regardless of size and whether private or public), who previously had excluded their employees from emergency paid sick leave under the federal Families First Coronavirus Response Act.
- "Food sector workers" (including independent contractors) where the employing entity employs over 500 employees nationwide, and who work in one of the following specific industries:
- Canning, freezing, and preserving industry,
- Industries processing agricultural products after harvest,
- Facilities on a farm that prepare products for market
- General agricultural occupations,
- Employees who work for a business that runs a "food facility", which includes grocery stores, fast-food restaurants, and food distribution centers;
- Employees who deliver food from a food facility for or through a hiring entity.
The portion of the law covering “food sector workers” is not new. The law simply codifies Governor Newson’s prior executive order which provided paid sick leave to “food sector workers” and was effective April 16, 2020.
Q. When are employees entitled to COVID-19 supplemental paid sick leave?
A. Employers must provide this leave to employees who are unable to work because they are:
- 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 COVID-19 related concerns; or
- prohibited from working by the Employer due to health concerns related to the potential transmission of COVID-19.
Q. How many hours of leave is a covered employee entitled to under the new COVID-19 supplemental paid sick leave?
A. It depends on the employee's schedule. Generally, employees considered full time, or employees who work or were scheduled to work on average at least 40 hours per week for you in the two weeks preceding the leave, are entitled to 80 hours of COVID-19 supplemental paid sick leave. (Certain active firefighters are entitled to more hours).
If an employee works less hours under a normal weekly schedule, he or she would be entitled to the total number of hours in leave that he or she is normally scheduled to work during a two week period. If an employee works a variable number of hours, he or she is entitled to 14 times the average number of hours they worked each day for the hiring entity in the six months preceding the date the covered worker took COVID-19 supplemental paid sick leave. Likewise, if he or she works a variable number of hours and has worked for the employer for 14 days or less, he or she is entitled to leave in the amount of the total number of hours that the employee has worked since the date of hire.
Q. When can an employee take this leave?
A. This new law goes into effect immediately. As such, beginning September 19, 2020, employers are required to make COVID-19 supplemental paid sick leave available for immediate use for an impacted employee once the employee requests it, orally or in writing. An employee can determine how many hours of their COVID-19 supplemental paid sick leave to use.
Q. How are employees paid under this new law?
A. COVID-19 supplemental sick pay is capped at $511 per day and $5,110 total. It must be paid by the employer at an hourly rate to an employee equal to the highest of:
- the employee’s "regular rate of pay" for the last pay period (including amounts subject to any applicable collective bargaining agreement);
- state minimum wage; or
- local minimum wage.
Q. How does this COVID-19 supplemental paid sick leave obligation intersect with an employer's other leave policies and California’s pre-existing paid sick leave law?
A. Under the new law, employers cannot require an employee to use any other paid or unpaid leave, paid time off, or vacation time before or instead of COVID-19 supplemental paid sick leave.
Similarly, the total number of hours of COVID-19 supplemental paid sick leave are in addition to any paid sick leave that an employee may be entitled to under California’s pre-existing paid sick leave law (Labor Code Section 246) or employer policy.
Q. Are there any exceptions for employers who have already provided or provide for COVID-19 related paid sick leave?
A. Yes, if an employer has already provided COVID-19 related sick leave for one of the qualifying reasons identified in this new bill, those hours count towards the new leave requirement so long as the employee was paid at the same rates required by this bill, or if the employer retroactively provides supplemental pay to that covered employee in an amount equal to or greater to the amount required by this bill.
If an employer already provides COVID-19 supplemental paid leave for the reasons in this bill at an amount equal to or greater than that provided for in this bill, then an employer can count the hours of the other paid leave towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide.
Q. Are there any notice requirements related to this new COVID-19 supplemental paid sick leave?
A. Yes, employers must post the following notices in the workplace. The notice can be posted electronically if your covered employees do not frequent the workplace.
Click here for the notice that employers with 500 or more employees with food sector workers are required to post.
Click here for the notice that (1) employers that have 500 or more employees nationwide or (2) public or private employers of health care providers and emergency responders are required to post.
Q. During what period of time are covered employers required to provide COVID-19 supplemental paid sick leave?
A. This law only covers the period beginning September 19, 2020, and the requirement expires either on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act, whichever is later.
But the requirement to provide COVID-19 food sector supplemental paid sick leave applies retroactively to April 16, 2020 (in accordance with Executive Order N-51-20).
Q. Do I have to update employee paystubs?
A. Yes! This is very important. Beginning the first full pay period after September 19, 2020, covered employers must update their employees’ itemized wage statements to provide written notice of the amount of COVID-19 supplemental paid sick leave available.
Q. What happens if you do not comply?
A. The Labor Commissioner is authorized to enforce the new bill, including citing employers for failure to provide the paid sick days, imposing penalties, and civil action.
The main thrust of the bill is the COVID-19 supplemental paid sick leave discussed in the Q&A above, but the wide-ranging bill also does a few other things. It conditionally mandates the creation of a small employer family leave mediation pilot program by the Department of Fair Employment and Housing (DFEH), which would allow a small employer or the employee to request all parties to participate in mediation through the DFEH’s dispute resolution division, and prohibit an employee from pursuing civil action until the requested mediation is complete. In addition, the bill updated the California Retail Food Code’s uniform health and sanitation standards to require a food employee working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed.
If you are a covered employer make sure to update your policies and inform your managers of the new leave requirements. There are a lot of nuances here, and you should connect with legal counsel to make sure you are in compliance, in particular if you were already providing a supplemental COVID-19 leave benefit to your employees. Lastly, please remember that your employee wage statements must be updated right away to include the number of hours of COVID-19 supplemental paid leave available for employees to use.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or 704-765-1409, or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Stephanie B. Kantor
Ballard Rosenberg Golper & Savitt, LLP