Expanded COVID-19 Paid Sick Leave

On September 9, 2020, the Governor signed AB-1867, which among other things, codified Executive Order N-51-20 (which provided supplemental paid sick leave to food sector workers), added a requirement that most employers with 500 or more employees to provide supplemental paid sick leave, and added supplemental paid sick leave for certain emergency and healthcare workers at employers with fewer than 500 employees. Below are the key requirements for these sick leaves.

Covered Employees & Employers

COVID-19 supplemental paid sick leave is available to:

1. “Food sector workers” who must leave their home or other place of residence to perform work for a “hiring entity” with 500 or more employees.
2. Employees who must leave their home or other place of residence to perform work for “hiring entities” that employ 500 or more employees.
3. Employees who must leave their home or other place of residence to perform work as health care providers or emergency responders for entities with fewer than 500 employees that elected to exclude them from emergency paid sick leave under the federal Families First Coronavirus Response Act (FFCRA).

For purposes of this article, any food sector worker or employee who meets one of the above criteria shall be referred to as a “covered employee” and the entity or hiring entity for whom they perform work shall be referred to as a “covered employer” or employer.

• “Food sector worker” is defined broadly to include workers who perform work for a business that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level; workers at operations where food is consumed on or off the premises; workers who deliver food for human consumption; agricultural and farm workers at establishments that harvest or prepare produce, meat, and dairy for sale; and workers at canning, freezing or preserving businesses.
• “Hiring entity” means a private sole proprietorship or any kind of private entity whatsoever (e.g., corporation, partnership, LLC) that has 500 or more employees in the United States.

Reasons for Leave

COVID-19 supplemental paid sick leave is available to each covered employee who is unable to work due to any of the following reasons:

1. The covered employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
2. The covered employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
3. The covered employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Leave Entitlement

A covered employee who satisfies either of the following criteria is entitled to 80 hours of COVID-19 supplemental paid sick leave:

1. The employer considers the covered employee to work “full time;” or
2. The covered employee worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the start of the COVID-19 supplemental paid sick leave.

A covered employee who does not satisfy the above criteria is entitled to an amount of COVID-19 supplemental paid sick leave as follows:

1. If the covered employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work over two weeks.
2. If the covered employee works a variable number of hours, 14 times the average number of hours worked each day in the six months preceding the start of the supplemental paid sick leave. If the covered employee has worked fewer than six months, this calculation shall be made over the entire period worked.
3. If the covered employee works a variable number of hours and has worked for fewer than 14 days, the total number of hours worked.

A covered worker who is an active firefighter or fire and rescue services coordinators who work for the Office of Emergency Service, at a covered department, who was scheduled to work more than 80 hours for the hiring entity in the two weeks preceding the date the covered worker took COVID-19 supplemental paid sick leave is entitled to an amount of COVID-19 supplemental paid sick leave equal to the total number of hours that the covered worker was scheduled to work for the hiring entity in those two preceding weeks. 

COVID-19 supplemental paid sick leave shall be in addition to any paid sick leave available under California’s regular Paid Sick Leave law (Labor Code § 246).

COVID-19 supplemental paid sick leave shall be available for immediate use upon oral or written request. A covered employee may determine how many hours of COVID-19 supplemental paid sick leave to use, up to the maximum allowed, for any qualifying leave.

Rate of Compensation

Each hour of COVID-19 supplemental paid sick leave shall be compensated at a rate equal to the highest of the following:

1. The covered employee’s regular rate of pay for the last pay period, including pursuant to any collective bargaining agreement that applies.
2. The state minimum wage.
3. The local minimum wage.

Employers shall not be required to pay more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate to a covered employee for COVID-19 supplemental paid sick leave.

Employers shall not require a covered employee to use any other paid or unpaid leave, paid time off, or vacation time before using COVID-19 supplemental paid sick leave, or in lieu of COVID-19 supplemental paid sick leave.

Exceptions

Employers who already provide supplemental paid leave benefits for the same reasons and who compensate their employees in the same amount, may count the other paid leave benefit towards the total number of hours of COVID-19 supplemental paid sick leave they are required to provide. If an employer provided supplemental paid leave between March 4, 2020 and September 19, 2020 for the same reasons but did not compensate the employee in the same amount, the employer may retroactively provide supplemental pay to the covered employee to satisfy the compensation requirements. The other supplemental paid leave benefit may not include leave under California’s regular Paid Sick Leave law, but it may include paid leave already provided pursuant to Executive Order N-51-20 or pursuant to federal or local law.

Records and Itemized Wage Statements for Non-Food Sector Workers

Employers must maintain records of a covered non-food sector employee’s hours worked, COVID-19 supplemental paid sick leave entitlement, and COVID-19 supplemental paid sick leave usage, for at least three years. Employers must also provide covered employees with written notice of the amount of COVID-19 supplemental paid sick leave available on the employee’s itemized wage statement or in a separate writing provided to the employee on the designated pay date with the payment of wages. Although it is not required, it is advisable for employers to provide this notice to food sector workers as well.

Notice Posting Requirements

Covered employers must post the Labor Commissioner’s model notice in the workplace so that it is available for all employees to view. Employers must distribute the notice electronically (e.g., by email, employee portal, on electronic message board) if employees do not frequent the workplace or are temporarily teleworking. The Notices are available at the following links: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf and https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf.

Effective Date & Termination

The requirement to provide COVID-19 food sector supplemental paid sick leave as set forth in this section applies retroactively to April 16, 2020. The requirement to provide COVID-19 non-food sector supplemental paid sick leave takes effect September 19, 2020. Both leave requirements expire on December 31, 2020, or upon the expiration of any extension of the Emergency Paid Sick Leave Act established by FFCRA, whichever is later, except that a covered employee taking COVID-19 supplemental paid sick leave at the time of expiration shall be permitted to take the full amount of COVID-19 supplemental paid sick leave to which that employee otherwise would have been entitled.

For more information on employers’ obligations to employees during the COVID-19 pandemic, suggested policies, or other employment issues, please contact your Lagasse Branch Bell + Kinkead attorney or any member of our COVID-19 taskforce: Jennifer Branch (jbranch@albblaw.com), Lara P. Besser (lbesser@albblaw.com) and Jessica Yang (jyang@albblaw.com).