The new law specifically addresses food service, healthcare and emergency responders. 

Employers with workers in California, take note. A new supplemental paid sick leave law related to COVID-19 takes effect this month. On September 9, 2020, California Governor Gavin Newsom signed AB 1867 (now known as Labor Code section 248 and 248.1) into law. Beginning September 19, 2020, all employers with more than 500 employees or who are otherwise exempt from the requirement to provide paid leave under the Families First Coronavirus Recovery Act (FFCRA) are now required to provide up to 80 hours of supplemental paid sick leave to employees for COVID-related reasons.

Employers Subject To Law

The new law extends to all employers with 500 or more employees nationwide. Employees are counted in the same way that they are counted under FFCRA. Public employers are not subject to the law.

The new law specifically addresses food service, healthcare and emergency responders. Businesses in those industries are encouraged to consult with legal counsel as to how the new law relates to their workplaces.

Eligible Employees

All employees, full-time or part-time, who work for employers with 500 or more employees nationwide are eligible for supplemental paid sick leave. However, to be eligible they must leave their home or place of residence to perform their work and they must need the leave for a reason governed by the law. The law does not apply to independent contractors.

Reasons for Leave

Deviating somewhat from the FFCRA, the new state law provides leave to eligible employees for the following COVID-19 related reasons:

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

A worker need not be suffering personally from COVID-19 for the law to apply.

Leave is available to covered employees upon the oral or written request of the worker. Employers may not deny the leave solely on a lack of medical certification. However, if an employer has information to suggest the worker is not requesting the leave for a valid purpose, it may be reasonable to ask for documentation before paying the employee for the leave. 

Amount of Leave

Employees considered full-time employees and those who worked or were scheduled to work an average of at least 40 hours per week in the two weeks before the leave are permitted to take up to 80 hours of leave. Calculations for part-time employees depend on their schedules and length of service.

Coordination with Local COVID-19 Leave Laws

Many cities in California such as San Francisco, Oakland, Los Angeles and San Jose have enacted paid sick leave laws specific to COVID-19. The new supplemental paid sick leave law is not intended to override local requirements. However, employers can apply local requirements to the new supplemental paid sick leave law. That means if the local law meets or exceeds the new state law, then the employers is not required to provide an additional 80 hours of paid sick leave. For example, if an employer already provided 40 hours of supplemental paid sick leave under a local ordinance then it is obligated to provide only an additional 40 hours under this new state law, so long as the leave provided was for a reason under the new California law and the employee was paid at the same pay rate as required by the new state law. If the employee already used 80 hours of supplemental paid sick leave under a local requirement that matches or exceeds the new law, then that employee is not entitled to any additional supplemental paid sick leave.

Employee Pay During Leave

Employee pay during leave is calculated at the employee’s regular rate of pay as determined by the Labor Code or at state or local minimum wage rates, if higher.

Notice to Employees/Paystub Requirements/Recordkeeping

Notice must be provided to employees. It may be disseminated via email if employees do not frequent a central workplace. Employers must also include the amount of available paid sick leave under this law on the employee wage statement, except for select food service workers subject to supplemental emergency paid sick leave. In addition, employers must keep records related to leave taken for up to three years.

Expiration/No Retaliation

The new law comes with an expiration date. It is set to expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave established by the FFCRA, whichever is later.

Employees using or attempting to exercise their rights under the new paid sick leave law are protected from retaliation. The California Labor Commissioner has the power to enforce the new law.

This law is meant to bridge the gap between those employers subject to the FFCRA and those who are not. The limitation of the FFCRA to smaller employers left many employees in California without such coverage. This new law only provides for the paid sick leave portion of the FFCRA, and does not include an expansion of the Family and Medical Leave Act for employees whose children’s schools or child care are unavailable due to the COVID-19 pandemic.

What This Means for Employers

To assure compliance with the new California supplemental paid sick leave law, businesses with employees in California should immediately evaluate whether they are required to provide this leave and, if so, make provisions to do so promptly. Those with paid sick leave policies should compare them to the new law to ensure they meet or exceed the new requirements. Evaluate employees who have taken paid sick leave this year to determine if they may be eligible for additional leave. Businesses should also confirm that their payroll provider or payroll software is equipped to provide the paid sick leave balance on employees’ wage statements and provide required notices.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Lori Ocheltree, Brooke B. Tabshouri, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.