September 16, 2020
On September 9, 2020, Governor Newsom signed Assembly Bill 1867, which among other things, provides supplemental paid sick leave for COVID-19 related reasons to food sector workers, as well as employees of private companies with 500 or more employees nationwide, and employees of emergency responder/healthcare provider employers who opted not to provide supplemental paid sick leave under the federal Families First Coronavirus Response Act (FFCRA). The law adds sections 248 and 248.1 to the California Labor Code, and amends section 248.5.
This law is intended to eliminate coverage gaps to ensure all California employees have access to paid sick leave for COVID-19 related reasons.
The law is in effect until December 31, 2020, unless Congress extends the FFCRA paid sick leave provisions to a later date.
Reasons for Leave
Employers must provide paid sick leave when employees are:
1) Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2) Advised by a healthcare provider to self-quarantine or self-isolate due to COVID-19 related concerns; or
3) Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.
Unlike the FFCRA and other local California COVID-19 supplemental paid sick leave provisions, employees cannot take this leave to care for a child whose school or child care provider is closed or to care for a family member with COVID-19.
Amount of Leave
Employees are entitled to supplemental paid sick leave according to their normal schedule, as follows:
1) For “full-time” employees (those who were scheduled to work or did work on average at least 40 hours per week in the two weeks before taking leave) – 80 hours (excluding certain firefighters);
2) For employees working less than “full-time” but with a normal weekly schedule – the total number of hours the employee is normally scheduled to work over two weeks;
3) For employees working less than “full-time” but who work a variable number of hours – 14 times the average number of hours the employee worked each day in the six months preceding the date of taking leave (or, if the employee has worked less than six months but more than 14 days, the average hours worked over the entire employment period);
4) For employees who work a variable number of hours and have worked for a period of 14 or fewer days – the total number of hours the employee has worked for that employer.
Employees determine how many hours of this leave to use, and employers must make this leave available for immediate use upon an employee’s oral or written request.
This leave is in addition to other paid sick leave provided by the employer. Employers cannot require employees to use other paid or unpaid leave (such as vacation, PTO, or other sick leave) before, or in lieu of, taking this COVID-19 supplemental paid sick leave.
Rate of Pay
The COVID-19 supplemental paid sick leave must be paid at an hourly rate equal to the highest of:
1) the employee’s regular rate of pay for the last pay period (including amounts subject to any applicable collective bargaining agreement);
2) the state minimum wage; or
3) the local minimum wage.
However, like the paid leave provided by the FFCRA, the amount is capped at $511 per day ($5,110 total).
Supplemental paid sick leave already provided by the employer for the reasons listed above and paid at or above the required rate can be deducted from the leave required by this law.
If an employer provided COVID-19 supplemental paid sick leave, but did not pay employees at the required rate of pay, they can retroactively provide supplemental pay to make up the required amount, rather than providing additional leave time. (This provision does not apply to food sector workers.)
Notice to Employees and Recordkeeping Requirements
Employers must provide notice of this new law, which can be done electronically (i.e., by email). The California Labor Commissioner will make a model notice available which employers can use.
There are also new paystub and recordkeeping requirements (excluding food sector workers). The amount of available leave must be provided either on an itemized wage statement or in a separate writing provided on the designated pay date. Employers must retain records of the hours worked, leave provided, and leave used for at least three years.
The Labor Commissioner can cite employers for violations, and can impose various penalties. The following remedies are also available: reinstatement, backpay, the payment of sick days unlawfully withheld, the payment of an additional sum (not to exceed an aggregate penalty of $4,000) as liquidated damages in the amount of $50 to each employee whose rights were violated for each day or portion thereof that the violation occurred or continued, plus, if the employer has unlawfully withheld paid sick days to an employee, the dollar amount of paid sick days withheld from the employee multiplied by three, or $250, whichever amount is greater; injunctive relief; reasonable attorney’s fees and costs; and other remedies as may be provided by California law.
Food Sector Workers
Many aspects of this law codify Governor Newsom’s Executive Order N-51-20, which provided COVID-19 supplemental paid sick leave to food sector workers earlier this year, and is retroactive to April 16, 2020. Additionally, the law requires that employees in food facilities be permitted to wash their hands every 30 minutes, and additionally as needed.
Please see our other articles discussing COVID-19 paid sick leave laws:
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ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (email@example.com). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.