On September 9, 2020, California Governor Gavin Newsom signed into law Assembly Bill 1867, which provides paid sick leave to workers who work for employers with 500 or more employees nationwide and are unable to work due to specified reasons related to COVID-19 (“Supplemental Paid Sick Leave”).  AB 1867 also creates Labor Code section 248, which imposes similar supplemental paid sick leave requirements on employers of food sector workers.  Employers must begin providing Supplemental Paid Sick Leave no later than September 19, 2020, and the law remains in effect through the end of 2020, though it may be extended if there is a federal extension of the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act (“FFCRA”).  AB 1867 was intended to “close the gap” left by the FFCRA with respect to employers with 500 or more employees and public and private employers of first responders and health care employees who opted not to provide leave under the FFCRA.  The new law imposes potentially significant financial penalties on employers who fail to provide the requisite Supplemental Paid Sick Leave.

An employee is entitled to Supplemental Paid Sick Leave if he or she is unable to work due to the following COVID-19 related reasons:

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

AB 1867 requires employers to provide Supplemental Paid Sick Leave to workers as follows:

  1. If the employer considers the employee to be a full-time employee or the employee worked an average of at least 40 hours per week in the two weeks preceding the date he/she took sick leave, the worker is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave.
  2. If the above requirements are not met but the worker has a normal weekly schedule, the worker is entitled to COVID-19 Supplemental Paid Sick Leave equal to the total number of hours the worker is normally scheduled to work over a two-week period.
  3. If the worker works a variable schedule, the worker is entitled to COVID-19 Supplemental Paid Sick Leave equal to 14 times the average number of hours he/she worked each day in the six months prior to taking sick leave or, if the worker has been employed for less than six months but more than 14 days, the average hours worked over the entire period of employment prior to taking sick leave.
  4. If the worker works a variable number of hours and has worked for the employer for a period of 14 days or less, the worker is entitled to COVID-19 Supplemental Paid Sick Leave in an amount equal to the total number of hours worked for the employer.

Supplemental Paid Sick Leave must be provided to workers immediately upon oral or written request. The employer is not permitted to deny a worker such leave based solely on a lack of certification from a health care provider.

Supplemental Paid Sick Leave must be provided in addition to any other paid sick leave that may be available to an employee under California’s Paid Sick Leave Law (California Labor Code section 246), and must be paid at a rate that is the highest of (a) the worker’s regular rate of pay for the last pay period, (b) the state minimum wage, or (c) the applicable local minimum wage, up to a cap of $511 per day or $5,110 in the aggregate.  Employers who already provide their workers with an equivalent supplemental leave benefit for the same reasons as those provided under AB 1867, the employer can offset the hours of paid leave provided from the COVID-19 supplemental paid sick leave requirement.  Furthermore, if an employer provided leave, but did not pay the employee at the rates required under the new law, the employer may retroactively provide supplemental pay to that worker in an amount equal to or greater than that required under the law, rather than providing additional leave time.

A violation of AB 1867’s Supplemental Paid Sick Leave requirements may result in civil and/or administrative proceedings.  If it is determined through an administrative proceeding that a violation has occurred, the Labor Commissioner may order reinstatement, backpay, payment of sick days unlawfully withheld sick days, and payment of administrative penalties.  The Labor Commissioner or the Attorney General may also bring a civil action seeking legal or equitable relief against an employer violating the Supplemental Paid Sick Leave requirements. The bill also provides that an employer’s adoption of and compliance with policies and procedures that comply with the requirements of the bill are relevant in determining whether an employer is in compliance with the bill’s requirements. The Labor Commissioner has issued a model notice for posting in the workplace, as FAQ’s regarding the leave entitlement.

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