California Expands COVID-Related Paid Sick Leave

Posted: November 9, 2020 | News

On September 9, 2020, Assembly Bill 1867 was signed into law by Governor Newsome, expanding California employees' entitlement to COVID-19 paid sick leave (CPSL). The new law is a parallel to an executive order from the Governor focused on food sector workers, but enormously extends that coverage to a broad range of employers and employees throughout the State. Additionally, the law codifies a pre-existing handwashing requirement in the food sector.

Different parts of the law apply to different types of employers and will take effect at different times. See the details below.

Expanded COVID-19 Paid Sick Leave

Employers Covered

All employers—including healthcare providers—with 500 or more employees in the United States are "Covered Employers." Further, employers with fewer than 500 employees, but who employ healthcare providers or emergency responders, and who chose to exclude those employees from the federal Families First Coronavirus Response Act (FFCRA) are Covered Employers.

Employees Covered 

California employees employed by a Covered Employer are eligible for CPSL if they leave their place of residence to perform work for the Covered Employer. Some characterize this law as a "gap-filler" to the Families First Coronavirus Response Act (FFCRA), which requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The thought is that the new California law is designed to ensure there is available leave for employees working for employers with more than 500 employees. But this law differs from the FFCRA in several respects. Significantly, among other things, healthcare workers and emergency responders can be excluded from emergency paid sick leave under the FFCRA, but they cannot be excluded from CPSL.

What about Non-Employees?

Outside of the food sector, only employees are covered (not independent contractors, for example). For the food sector, however, it appears any worker is covered, if he or she works as an employee or in another capacity for a Covered Employer that is in the food industry that operates a food facility or delivers food from a food facility.

Effective Date of the Law

For all workers other than food sector workers, the law takes effect within 10 days of its enactment—that is, by September 19, 2020. The law will remain in effect until December 31, 2020, or the expiration of any extension of emergency paid sick leave provided by the FFCRA, whichever is later.

For food sector workers who were covered by the Governor's executive order, the law is retroactive to April 2020. AB 1867 provides that leave already provided to food sector workers under the executive order counts against any leave time provided under the new law. In other words, food sector workers are not entitled to double up CPSL by adding another period of paid sick leave on top of the leave provided previously pursuant to the executive order.

What Leave Must Be Provided and Under What Circumstances? 

Covered Employers must provide supplemental paid sick leave to workers, who would otherwise leave their home or residence for work, and who are unable to work due to any of the following reasons:

• They are subject to a federal, state, or local COVID-19 quarantine or isolation order.
• Their healthcare provider advises the employee to self-quarantine or self-isolate due to concerns related to COVID-19.
• They are prohibited from working by the employer due to health concerns related to potential transmission of COVID-19.

Workers who are considered by the employer to be full-time are entitled to 80 hours of CPSL. Workers who are not full-time but who worked or were scheduled to work at least 40 hours, on average per week in the two weeks preceding the date the worker takes leave, are also entitled to 80 hours.

Other workers, less than full time or who did not average 40 hours of work or scheduled work in preceding week, are also entitled to CPSL but in lower amounts. Workers who have normal weekly schedules are entitled to the number of hours the worker is normally scheduled over a two-week period.

Workers with variable hours are entitled to 14 times the average number of hours worked per day during the prior six months of employment. If the worker had been employed for less than six months, the statute specifies different calculation methods.

Notably, CPSL is in addition to any paid sick leave to which a worker is entitled under the California sick leave law, Labor Code section 246 (which generally provides for 24 hours or three days of paid sick leave per year). However, if the employer already provides another supplemental benefit payable for COVID-related reasons and at the same or higher pay rates, the employer may count those hours towards the new CPSL. But employers cannot require any other paid or unpaid leave time be taken before the remaining number of CPSL hours are exhausted.

Workers can choose the number of CPSL hours to use up to the limit of the legal allotments. The pay rate is the regular rate of pay for the last pay period, or state or local minimum wage, whichever is the highest of the three.

Other Requirements 

Covered Employers are required by the California Labor Commissioner to post notices that or distribute electronically.

Covered Employers are obligated to inform employees other than those in the food sector of the amount of CPSL available for their use, by either including it on employees' wage statements or paystubs or in a separate writing provided on pay days. This requirement is consistent with, but in addition to, the current requirement in the California sick leave law to provide notice to employees of available sick time.

Records of CPSL usage must be kept for three years.

Requirement for Handwashing

The new law also requires Covered Employers to permit any individuals who work with food in food facilities—a defined term that broadly includes operations in which food is consumed and whether there is a charge for food or not—to wash their hands every 30 minutes "and additionally as needed."

Enforcement of the Law

The Labor Commissioner enforces the law and is authorized to bring suit, if necessary.

The cost of violating the law is three times the dollar amount withheld or $250, whichever is greater, for each day sick leave is not provided. Aggregate penalties cannot exceed $4,000 per employee.

TAKE AWAY POINTS:

• All employers, especially those in the healthcare sectors, must review existing paid sick leave policies and implement supplemental paid leave le if comparable leave is not already provided. 
• Employers other than those in the food sector must take steps to add reference to available CPSL on wage statements or in a separate document. Failure to comply could be costly.
• Food facility employers need to ensure a place for washing hands is readily available and that employees have the opportunity to take time to wash their hands as needed ( at least every 30 minutes).

The law regarding COVID-19 is developing rapidly. Please consult with legal counsel for guidance. 

The attorneys at North & Nash, A Professional Law Corporation are equipped to guide employers through this maze of new laws and regulations, so please reach out to us at 949-752-2200 and we will help you keep your business in compliance.

Author: Partners at North & Nash, A Professional Law Corporation