California Governor Gavin Newsom has signed Assembly Bill (AB) 1867, to create COVID-19 supplemental paid sick leave (CPSL) requirements for employers with 500 or more employees, filling a gap left by the federal Families First Coronavirus Response Act (FFCRA) which applies only to employers with under 500 employees.  The new law also codifies existing supplemental paid sick leave requirements for certain food-sector workers that were implemented in April under California Executive Order E.O. N-51-20.

AB 1867 took effect on September 19, 2020.  It will expire on December 31, 2020, although if Congress extends the emergency sick leave provisions of the FFCRA, the provisions of AB 1867 would automatically be extended for the same period.

Supplemental Paid Sick Leave (Not Including Food-Sector Workers)

AB 1867 adds new California Labor Code section 248.1 to provide up to 80 hours of supplemental paid sick leave for “covered workers.”  “Covered workers” are employees who: (1) leave their residence to perform work for their employer; and (2) are employed either by a private “hiring entity” with 500 or more employees in the United States, the District of Columbia, or any U.S. territory, or an entity that employs health care providers or emergency responders and elected to exclude those employees from FFCRA emergency paid sick leave.  The law also has special rules pertaining to certain firefighters. (Covered workers do not include food-sector workers, who are covered by separate provisions discussed below.)

Covered workers are entitled to 80 hours of CPSL if the employer considers the worker to work “full time” or 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 CPSL leave.  Covered workers who are part time and have a normal weekly schedule receive an amount of CPSL equal to the total number of hours they are normally scheduled to work over two weeks. Part-time workers with a variable schedule receive 14 times the average number of hours they worked each day in the six months preceding the date they took CPSL leave. If their employment tenure is shorter than six months, but more than 14 days, the calculation should be made using the entire period of the employment. If the employment period is shorter than 14 days, then the total number of hours worked must be used.

Covered workers can use CPSL when they are unable to work because they are: (1) subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (3) prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19. Notably, unlike FFCRA emergency paid sick leave, CPSL is not available to care for or assist another individual, e.g., because a child’s school closes or a childcare provider is unavailable due to COVID-19.

A worker may determine how many hours of CPSL to use, and the employer must make CPSL available for immediate use upon a worker’s oral or written request. CPSL must be paid at an employee’s regular rate of pay for the last pay period or at the state or local minimum wage rate, whichever rate is highest. The law caps the maximum amount of pay an employer must provide at $511 per day and $5,110 overall. Payment must be made no later than the payday for the next regular payroll period after leave was taken.

If a business already provides a covered worker with a supplemental paid leave benefit that can be used for the same reasons as CPSL and would compensate the worker in an amount equal to or greater than what Labor Code 248.1 requires, the business may count the other paid benefit or leave hours towards the total number of CPSL hours it must provide the covered worker. This includes any supplemental COVID-19 leave required by a local ordinance. If the employer already provided supplemental paid leave between March 4, 2020 and September 19 for the reasons covered by CPSL, but compensated the worker less than would be required under the new law, the employer may retroactively provide supplemental pay to the worker to satisfy the CPSL compensation requirements and then count those hours towards the total number of hours of CPSL required by the new law. Note that regular California paid sick leave may not be used to offset the CPSL requirement.

The new law also imposes two notice requirements on employers. First, employers must immediately provide notice to employees of the new CPSL provisions by way of a new workplace poster, available here.  Workers who do not frequent the workplace should be provided the notice by email or other means.  Second, Labor Code 248.1 incorporates provisions of the existing California paid sick leave law that requires employers to report sick leave balances on employee wage statements. Thus, employers are also now required to include CPSL balances on wage statements, or in a separate writing provided on the designated pay date with the payment of wages.

Supplemental Paid Sick Leave for Food-Sector Workers

The law also creates new California Labor Code section 248 to codify and extend the food-sector COVID-19 paid sick leave provisions of E.O. N-51-20, was issued in April 2020. The food-sector sick leave provisions are similar to those under Labor Code 248.1. A food-sector worker is an employee or independent contractor who leaves the person’s home to perform work and is  either: (i) in an industry or occupation covered by California Industrial Welfare Commission wage orders 3, 8, 13 or 14; (ii) for a hiring entity that operates a food facility, as defined in Section 113789 of the Health and Safety Code; or (iii) delivers food from a food facility, as defined in Section 113789 of the Health and Safety Code, for or through a hiring entity.

Notably, paid leave already provided under E.O. N-51-20 or pursuant to supplemental paid leave provided under federal or local law for the same reasons will satisfy the new statutory requirement. Employers with food-sector workers must post a notice of the new provisions or email the notice to workers who do not frequent the workplace. The poster is available here.

AB 1687 also codifies a requirement in E.O. N-51-20 that food-sector workers working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed.

Steps to Take Now

California employers covered by AB 1687 should immediately review their COVID-19 sick leave programs to determine whether they will need to offer additional leave for COVID-19 reasons. Employers should also post the new workplace poster, and email it to any employee who is not at the workplace, and work with their payroll provider to ensure that the new sick leave is reflected on wage statements.