California Enacts Supplemental Paid Sick Leave Law for Large Employers, Emergency Responders, and Health Care Providers

09.17.2020

On September 9, 2020 Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which requires California's private sector employers with 500 or more employees in the United States to provide up to 80 hours of COVID-19 Supplemental Paid Sick Leave (“SPSL”). AB 1867 also requires certain employers covered by the Families First Coronavirus Response Act (“FFCRA”) to provide up to 80 hours of SPSL to health care providers and emergency responders, if those employers excluded these employees from receiving paid sick leave (“PSL”) under the FFCRA.  This requirement applies to certain public entity employers, including cities, counties, school districts, county offices of education, community college districts, housing authorities, transit agencies, water districts, and other special districts (“public employers”). Finally, AB 1867 codifies much of the food sector SPSL that was established under Executive Order N-51-20 issued by the Governor earlier this year. 

AB 1867 takes effect September 19, 2020, and will expire on the later of December 31, 2020, or when the FFCRA emergency paid sick leave benefits expire if such benefits are extended.

Reasons for Using Leave

The COVID-19 SPSL may be used for the following reasons:

• a covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
• a covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
• a covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

The Labor Commissioner issued posters for large employers and for employers in the food sector:

https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf

https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf  

Employers and hiring entities are required to display the applicable poster(s), in a conspicuous place that contains information about COVID-19 SPSL.  If an employer’s or hiring entity’s covered workers do not frequent a workplace, the employer or hiring entity may satisfy the notice requirement by disseminating notice through electronic means.

Amount of Leave and Pay

Full-time workers will be entitled to 80 hours of COVID-19 SPSL.  Part-time workers will be entitled to a prorated amount of COVID-19 SPSL depending on the circumstances.

AB 1867 creates a different rule for “active firefighters.”  “Active firefighters” who work more than 80 hours for a public employer in the two weeks preceding the use of COVID-19 SPSL are entitled to an amount of leave equal to the total number of hours that the employee was scheduled to work in those preceding two weeks. 

Each hour of COVID-19 SPSL shall be compensated at a rate equal to the highest of the following:

(i) The covered worker’s regular rate of pay for the covered worker’s last pay period, including pursuant to any collective bargaining agreement that applies.

(ii) The state minimum wage.

(iii) The local minimum wage to which the covered worker is entitled.

Similar to the FFCRA, COVID-19 SPSL benefits are capped at five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate.

Definition of “Health Care Provider” and “Emergency Responder”

AB 1867 adopted the definition of “health care provider” and “emergency responder” provided under federal law. “Health care provider” is defined as:

[A]nyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any other similar institution, Employer, or entity. (29 C.F.R. section 826(c)(1)(i).)

“Emergency responder” is defined as:

[A]nyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. (29 C.F.R. section 826(c)(2)(i).)

Application to Food Sector Workers

AB 1867 COVID-19 SPSL applies to “food sector workers,” defined as those working in specified segments of the food industry (canning freezing and preserving; handling products after harvest; preparing agricultural products for market on the farm; agriculture), or working in a food facility or delivering food from a food facility for a “hiring entity,” which is defined specifically as a private (not public) entity.

Labor Commissioner FAQ

The Labor Commissioner issued a FAQ on the new requirement.  The Labor Commissioner states that, generally, employers may not request documentation from employees requesting to use the COVID-19 SPSL.  However, the Labor Commissioner states that “it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the hiring entity has other information indicating that the worker is not requesting COVID-19 Supplemental Paid Sick Leave for a valid purpose.” 

The FAQ clarifies that COVID-19 SPSL for non-food sector workers does not apply to independent contractors.  However, for food sector employers, the law applies to all food sector workers who perform work for or through the hiring entity, regardless of whether the workers are deemed employees or independent contractors.

Offset

The Labor Commissioner addresses how an employer may obtain credit for supplemental paid sick leave provided pursuant to employer policy or local ordinances prior to enactment of the new law.   Employers may take credit for: (i) other supplemental paid benefits or leave provided under Executive Order N-51-20, (ii) other paid benefits or leave provided for the same reasons set forth above, or (iii) supplemental paid leave provided pursuant to federal or local law if it was use for the same reasons set forth above.  However, sick leave provided pursuant to the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code Section 246) does not count towards providing supplemental paid sick leave benefits.

For public employers that previously provided 80 hours of paid benefits or leave for the same COVID-19-related reasons set forth above, the public employer may offset those hours against the SPSL required by AB 1867.  If public employers provided 80 hours of leave or benefits, but did not pay it at rates required by AB 1867, the public employer may retroactively provide the supplemental pay required by the law without having to provide additional SPSL.

The requirement to provide COVID-19 Food Sector SPSL applies retroactively to April 16, 2020, except that a food sector worker taking COVID-19 Food Sector SPSL at the time of the expiration of this law shall be permitted to take the full amount of COVID-19 Food Sector SPSL to which that food sector worker otherwise would have been entitled under this law.

The Labor Commissioner clarifies that under Executive Order N-51-20, the food sector worker was required to be exempt from the Stay at Home Order (EO N-33-20) in order to be eligible for SPSL, but this is not a requirement under Labor Code section 248.

Businesses and public employers with more questions regarding the new supplemental paid sick leave requirement may contact the authors or their usual employment law counsel.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.
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