Publication Details

Special Alert: California Governor Gavin Newsom Signs AB 1867, Expanding COVID-19 Supplemental Paid Sick Leave, Creating Small Employer Mediation Program for CFRA Claims (AB 1867)

Sep 14, 2020 | Related Attorneys Michael S. Kalt, Simone M.  Leonard | Topic: Employment

On September 9, 2020, Governor Gavin Newsom signed Assembly Bill (AB) 1867, which:

(1) adds supplemental paid sick leave requirements for certain employers;

(2) codifies existing COVID-19 supplemental paid sick leave requirements for certain food sector workers;

(3) codifies existing COVID-19 handwashing requirements; and

(4) creates a small-employer family leave mediation pilot program.

This budget trailer bill reflects a number of Governor  Newsom’s stated priorities and is immediately effective, although the various paid sick leave requirements would not take effect until 10 days after enactment and only remain in place until the later of December 31, 2020 or the expiration of the federal Families First Coronavirus Response Act (FFCRA). Notably, workers using such benefit when the law expires would still be entitled to use the full amount of COVID-19 supplemental paid sick leave.

COVID-19 Supplemental Paid Sick Leave

For Context: Previous Federal Legislation and Local Ordinances

In general terms, the FFCRA created a paid sick leave entitlement for COVID-19 purposes that only applied to employers with fewer than 500 employees. The FFCRA also authorized health care or emergency responder employers to exclude certain health care providers and emergency responders from the FFCRA. AB 1867’s provisions regarding COVID-19 Supplemental Paid Sick Leave (COVID-19 SPSL) are intended to fill in the FFCRA’s gaps in coverage. 

At the municipal level, some California cities enacted local “supplemental paid sick leave” ordinances to extend the FFCRA for larger employers within California (albeit each with their own variations). These municipalities include the city of Los Angeles , Unincorporated Los Angeles County, San Francisco, San Jose, and Oakland. The ordinances enacted differ from federal law in some respects—beyond the size of the employer. Accordingly, in the wake of AB 1867, this intersection of local, state, and federal laws may require an employer’s particular attention to varying nuances.

As AB 1867 extends the FFCRA for larger employers within California on a statewide basis, it similarly applies to workers for health care providers or emergency responders that had elected to exclude such employees from the FFCRA’s emergency paid sick leave provisions. 

Identifying “Covered Workers”

Accordingly, new Labor Code section 248.1 entitles “covered workers” (i.e., those satisfying the broad statutory definitions and who leave their home or other place of residence to perform work—in other words, non-remote employees—for the person’s hiring entity) to COVID-19 SPSL (meaning paid sick leave above and beyond that already provided under California’s generally applicable paid sick leave law [Labor Code section 245 et seq.]).  A “hiring entity” (as defined, but generally meaning an entity with 500 or more employees in the United States) must provide such COVID-19 SPSL to workers who perform work for the hiring entity if that worker cannot work due to any of the following reasons:

(A) the worker is subject to a federal, state or local quarantine or isolation order related to COVID-19;

(B) the worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

(C) the worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Notably, and in contrast with the current statewide paid sick leave entitlement, this COVID-19 SPSL is available immediately (i.e., no 30 day employment requirement, or 90 days of employment before usage), and also applies to those workers otherwise excluded from the general definition of “employee” for paid sick leave purposes in section 245.5(a) (e.g., CBA-covered employees, flight crew members, city/state employees, in-home support workers, etc.). Moreover, workers can use the sick leave granted upon oral or written request (i.e., no need for medical certification) and the worker determines how much to use.

What Supplemental Paid Sick Leave is Granted to Workers?

This “supplemental” paid sick leave would be in addition to the amount of paid sick leave provided under California’s currently existing statewide paid sick leave law. Covered workers are entitled to 80 hours of COVID-19 supplemental paid sick leave if the hiring entity considers the covered worker to be “full time,” or if the worker worked or was scheduled to work, on average, at least 40 hours per week for the hiring entity in the two weeks preceding the date the worker took this COVID-19 supplemental paid sick leave (AB 1867 also enumerates slightly different amounts applicable to full-time firefighters and other specified public employees).

Other covered workers are entitled to differing amounts of supplemental paid sick leave depending on the type of schedules they work and/or the length of service with the hiring entity.  For instance, covered workers with a normal weekly schedule are entitled to the total number of hours the covered worker is normally scheduled to work for the hiring entity over a two-week period.  Workers with variable schedules are entitled to 14 times the average number of hours the worker worked each day for the hiring entity in the six months preceding the date the worker took supplemental paid sick leave.  If the worker has worked less than six months but more than 14 days, this calculation is made over the entire period the worker has worked for the hiring entity.  If the worker works a variable number of hours and has worked for the hiring entity for 14 or fewer days, the worker will be entitled to the total number of hours worked for the hiring entity. 

What is the Applicable Rate for Supplemental Paid Sick Leave?

The supplemental paid sick leave is to be paid at a rate equal to the highest of either:

(A) the worker’s regular rate for the last pay period;

(B) the state minimum wage; or

(C) the local minimum wage to which the worker is entitled. 

However, as with the federal FFCRA, the hiring entity is not required to pay more than $511 daily and $5,110 in the aggregate for the supplemental paid sick leave taken by the worker.

The hiring entity also cannot require the worker to use other paid or unpaid leave, paid time off or vacation provided by the hiring entity before or in lieu of the worker using this supplemental paid sick leave.  However, the hiring entity is not required to provide this supplemental paid sick leave if it already provides a similar benefit capable of being used for the same purposes as this supplemental benefit, excluding the paid sick leave otherwise currently required under the statewide paid sick leave law. 

Many employers have expressed frustration in potentially complying with the myriad of local ordinances within California requiring COVID-19-SPSL within a particular city, or to the extent they potentially have already provided COVID-19-SPSL equivalent leave even if not previously required to.  While AB 1867 does not preempt these other local ordinances, it does contain some relief for employers who have previously been trying to provide such relief.  For instance, as noted above, to the extent the employer has already provided paid leave other than paid sick leave available under the Health Workplace, Healthy Families Act to comply with a federal or local law and for the same purposes as COVID-19-SPSL, then such time off may be counted against the paid time required under this new law.

Also, if a hiring entity provided time off for the purposes contemplated under this COVID-19 SPSL between March 4, 2020 and the effective date of this bill, but did not compensate the worker at the rates discussed above, the hiring entity may retroactively provide the supplemental pay to the covered worker to satisfy the compensation requirements, in which case those previously provided hours count towards the total amount of available supplemental paid sick leave.

Notice Requirements

California’s general paid sick leave law requires (per Labor Code section 247) that employers post in a conspicuous place statutorily-enumerated information about the Healthy Workplace, Health Families Act.  AB 1867 similarly contemplates that employers will display notice about the new COVID-19 SPSL and directs the Labor Commissioner to publish a model notice for employers to use.  On September 16, 2020, the Labor Commissioner published this notice on its website.  Notably, and reflective of the current socially-distanced workforce during this pandemic, new Labor Code section 248.1(d)(1)(C) provides that employers may satisfy this notice requirement concerning COVID-19-SPSL for workers that do not frequent the workplace by electronic means, including email.

Moreover, section 248.1(d)(1)(A) incorporates section 246(i), requiring that hiring entities provide notice within an itemized wage statement or separate writing of an employee’s available COVID-19 supplemental paid sick leave. Such notice must be given each pay period. This requirement takes effect in the first pay period following the date of enactment of section 248.1 (i.e., the first pay period after September 9, 2020).

Food Sector Worker Paid Sick Leave

In April 2020, Governor Newsom enacted Executive Order N-51-20 which created an entitlement to paid sick leave for food sector workers (as defined).  AB 1867 essentially codifies these requirements, making them retroactive to April 16, 2020 and applicable until the later of either December 31, 2020 or the expiration of the federal FFCRA.  This “COVID-19 food sector supplemental paid sick leave” is codified in new Labor Code section 248 and will operate in a manner very similar to the provisions noted above regarding the more generally applicable COVID-19 supplemental paid sick leave available to almost all other workers.

Handwashing Time for Food Facility Employees

AB 1867 also amends the Health and Safety Code to specifically authorize food employees in any food facilities to wash their hands every 30 minutes, and even more often if needed.

Small Employer Mediation Program for CFRA Claims

The Legislature is also currently considering which would essentially extend the CFRA to apply to employers with five or more employees (instead of the current 50 employee threshold).  Perhaps anticipating the potential burden upon smaller employers, this bill creates, until January 1, 2024, a small employer family leave mediation pilot program.  Under this program,  small employers (i.e., those with between five to 19 employees) or employees may, within specified time frames (i.e., within 30 days of the receipt of a right to sue notice for CFRA claims), request all parties to participate in a dispute resolution program to be established by the DFEH.  Such a request precludes the employee from initiating a civil action until the mediation is completed, but the statute of limitations for the CFRA and all related claims is also be tolled.

Importantly, AB 1867’s provisions related to the small employer pilot mediation program will only take effect if SB 1383 is also enacted.

Do you have questions about how this update may affect you?  For further information contact:

Emily J. Fox (efox@wilsonturnerkosmo.com)

Lois M. Kosch (lkosch@wilsonturnerkosmo.com

Michael Kalt (mkalt@wilsonturnerkosmo.com)

Simone Leonard (sleonard@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant developments in the law as they occur. This should not be considered legal advice.