New Covid-19 Supplemental Paid Sick Leave
In yet another attempt to aid California employees needing to take leave during the pandemic, the California State Assembly passed bill AB-1867, which institutes new supplemental paid sick leave for reasons related to COVID-19. Effective September 19, 2020 (and applying retroactively to April 16), the law covers eligible employees who must leave home for their job.[1] Eligible employees, including those in the food sector, must work for non-government businesses with 500 or more employees. The law also covers health care and emergency responders not covered under the Families First Coronavirus Response Act (“FFCRA”). The type of food sector workers covered ranges from farmworkers to workers employed in the retail food supply chain—including pick-up, delivery, supply, packaging, retail, or preparation. Eligible workers will also include grocery workers, restaurant or fast food workers, workers at food storage warehouses, and workers who pick-up or deliver any food items.
Employees in the above categories may now be eligible for supplemental paid leave if, due to COVID-19, they are 1) subject to a mandated quarantine or isolation order, 2) ordered to self-isolate by a health care provider, or 3) ordered by their employer not to come to the office to prevent transmission of the virus. Unlike under the FFCRA, this new leave is not available for COVID-related child-care.
Leave requirements
For the covered employees mentioned above, AB-1867 requires employers to provide supplemental paid leave as follows:
80 hours for full-time workers (or anyone who worked an average of 40 hours or more in the two weeks before taking leave).
Two weeks’ worth of hours for part-time workers with a regular schedule.[2]
Employees must be allowed to take leave immediately upon request and paid at their regular wage or at the local or state minimum wage—whichever is highest.
Note, however, that employers are not required to pay more than $511 per day and $5,110 total.
It’s also important to highlight that, according to the California Labor Commissioner’s FAQ page, employers may not predicate leave on receiving medical documentation. However, an employer may ask for documentation after receiving information that the employee’s reason for taking leave may be invalid.
While employers cannot force workers to use other available leave first, businesses may offset these new requirements with previously provided supplemental paid leave, provided that the leave was taken for the same reasons and paid at the same rate or higher. If the previous leave was paid at a lower rate, the employer can still count it by paying the employee the difference between their prior rate and current rate (unless that exceeds the daily or total cap mentioned above).
AB-1867 will expire on December 31st or when the FFCRA’s Emergency Paid Sick Leave Act expires—whichever is later. On the date of expiration, if an employee is in the middle of their paid leave, they must be permitted to finish that leave.
Employers must immediately:
Post or electronically disseminate this notice for workers outside of the food sector, and this one for food-sector workers.
Ensure that pay stubs (or another written notice delivered on pay dates) include updated information on an employee’s available leave.
We also recommend that employers do the following:
Contact counsel if you’re confused about the sources of leave to which your employee is entitled, or how much of the current leave requirements can be offset by prior leave you granted employees. This is a tricky area to navigate.
Always document reasons an employee takes leave. In some cases, you’ll be required to provide this for tax credits and other offsets against leave you provide.
Review the Frequently Asked Questions published by the California Labor Commissioner’s Office if you need additional helpful information on the new supplemental paid sick leave bill.
[1] The frequency with which they need to visit their place of work is not defined.
[2] If a part-time worker’s schedule is inconsistent, an employer must calculate their average daily hours for their past six months of employment. This average x 14 = the number of eligible leave hours they are entitled to.
Authors: Diana Maier, Partner, and Penina Eilberg-Schwartz, Project Manager/Paralegal.
The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.
This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly at info@maierlawgroup.com.