September 18, 2020 – California Requires Large Employer to Provide Supplemental Leave for COVID-19 Reasons

Companies with California operations take note.  A new California law enacted specifically to address a gap left by the Families First Coronavirus Response Act (FFCRA) mandates employers who are not covered by the FFCRA to provide paid sick leave for certain COVID-19 related reasons by September 19, 2020.

When the federal government enacted the FFCRA, it specifically exempted companies with more than 500 employees nationwide and allowed for public and private employers of emergency responders and health care employees to elect to exclude those employees from emergency paid sick leave under the FFCRA.  Thanks to new legislation in California, however, large employers and employers of emergency responders and health care employees can no longer count on these exemptions going forward.

AB 1867, which was approved by California Governor Gavin Newsom last month and is codified at Labor Code Sections 248 and 248.1, mandates supplemental COVID-19 paid leave (COVID-19 SPL) be made available to employees of companies with more than 500 employees nationwide and to emergency responders and health care employees whose employers elected to not provide coverage under the FFCRA.

COVID-19 SPL must be provided if the worker is:

• Subject to a federal, state, or local quarantine or isolation order related to COVID-19, or
• Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19, or
• Prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19.

With the exception of certain firefighters, employees who work full time or are scheduled to work, on average, at least 40 hours a week during the two weeks preceding the date leave is requested, are entitled to 80 hours of COVID-19 SPL.  Employees who do not work full time but have a regular weekly schedule are entitled to the total number of hours the employee is normally scheduled to work in a two-week period.  Workers with a variable weekly schedule are entitled to 14 times the average number of hours worked per day during the prior six months of employment.

COVID-19 SPL must be provided in addition to any paid sick leave that the covered worker receives pursuant to existing law, except that leave previously provided for one of the above reasons may be counted towards the leave mandated by this section, provided that the employee was paid at the higher of his or her regular rate and state or local minimum wage, up to a maximum of $511/day and $5,110 total.  Alternatively, if the leave was provided for a qualifying reason but the pay did not meet the pay requirements, the business may retroactively provide supplemental pay to the worker to satisfy the law’s pay requirements.

AB 1867 also codifies California Executive Order N-15-20, which mandated businesses with 500 or more employees provide supplemental paid sick leave for food sector workers.  Employers who previously provided leave pursuant to that Executive Order can count that time towards the leave mandated by AB 1867.

Workers can request COVID-PSL verbally or in writing.  A medical certification from a healthcare provider is not required by this new law.  However, an employer may ask for documentation if it reasonably believes the employee is not requesting COVID-19 SPL for a valid reason.

Employers must display the applicable notice(s) of the new law in a conspicuous place, the form of which has been designated by the Labor Commissioner and is available at Supplemental Paid Sick Leave for Non-Food Sector Workers and Supplemental Paid Sick Leave for Food Sector Workers.  If an employer’s workers do not frequent a physical workplace, the employer can satisfy the posting requirement by disseminating the notice by email or other electronic means.

Critically, employers must also provide written notice to employees concerning the amount of leave available to employees on either an itemized wage statement or in a separate writing provided on designated pay dates.  Records of these statements must be retained for at least three years, just as employers are required to do for regular sick leave requirements under California’s Healthy Workplace Healthy Family Act.

Additionally, with respect to employees in the food sector, a defined term that broadly includes operations in which food is consumed, employers must allow its workers to wash their hands every 30 minutes and “additionally as needed.”

The Kullman Firm, with licensed California attorneys, regularly advises clients on California employment issues.  If you have questions about COVID-19 or the California legislation discussed above, please contact the Kullman Firm attorney with whom you regularly work for the most current guidance on these matters.