9-25-2020 Update: California COVID-19 Supplemental Paid Sick Leave Act (AB 1867)

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Update: 9-25-2020 – Governor Newsom has signed AB 1867, a bill that expands supplemental paid sick leave (PSL) for COVID-19-related reasons for certain employers not already covered by existing leaves through the Families First Coronavirus Response Act (FFCRA) at the federal level.

Covered Employers (previously exempted from FFCRA)

  • Employers with more than 500 employees nationally.
  • Employers of healthcare provider and emergency-responder Healthcare providers are defined by the Department of Labor (DOL) to include specific examples of diagnostic services, preventive services, treatment services, and other services that are integrated with and necessary to the provision of patient care (e.g., IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, billers).

These employers must now provide California employees with 2 weeks (80 hours) of supplemental PSL for specified COVID-19 reasons. The purpose of the law is to bridge the gap with FFCRA, which applied only to employers with fewer than 500 employees, and Executive Order No. N-51-20, that provided leave only to food sector workers under certain circumstances related to COVID-19.

Covered Employees
To be eligible for supplemental PSL, employees must be required to leave their home to perform their work and must be unable to work because they are:

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

Employee Status

  • Full-time employees are entitled to 2 weeks (80 hours) of supplemental PSL.
  • Part-time employees may have variable entitlements depending on their past schedules and hours worked.  They are eligible for an amount of leave equal to the number of hours they are normally scheduled to work in 2 weeks.

Payment Rates

  • The rate of pay for supplemental PSL is the highest of the employee’s regular rate of pay, the state minimum wage, or the local minimum wage in the city where they are based.
  • If a part-time employee works a varying schedule, they’re entitled to hours equal to 14 times the average number of hours the employee worked each day in the prior 6 months, or over the total time of employment if less than 6 months.
  • Supplemental PSL is capped at $511 per day and $5,110 total per employee.

Employer Requirements

  • Employers cannot require that employees exhaust other available types of leave prior to using their supplemental PSL entitlement; however, if an employer has already put in place some type of COVID-19 supplemental leave, it can be credited toward such leave.
  • Applicable notice must be posted immediately (which may be done electronically, as an urgent notice), which include a poster (attached) that must be made available to employees, as well as mandatory printing of the amount of available California COVID-19 supplemental PSL leave balances on employees’ wage statements. Employers also must maintain use records for 3 years.

Penalty
In the event the COVID-19 supplemental PSL is unlawfully withheld, the employer may be subject to an administrative penalty of at least $250 per day, a penalty not to exceed $4,000 in the aggregate. While there is no private right of action under the new law, employees may also be able to assert Private Attorney General Act (PAGA) claims for violations of the new law.

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