California Employers Take Note: New Law Expands COVID-Related Paid Sick Leave

Update September 17: This blog has been updated to reflect current guidance about California's expanded COVID-19 paid sick leave.

On September 9, 2020, Governor Gavin Newsom signed into law Assembly Bill 1867 which expands California employees' entitlement to COVID-19 paid sick leave (CPSL). The law parallels an executive order directed towards food sector workers that Governor Newsom signed this year, and extends that coverage to a broad swath of employers and employees throughout the state. The law also codifies a pre-existing handwashing requirement in the food sector, among other things.

Different parts of the law apply to different types of employers and will take effect at different times. These details are provided with respect to each part of the law, below.

Expanded COVID-19 Paid Sick Leave

What Employers Are Covered?

All employers—including healthcare providers—with 500 or more employees in the United States are "Covered Employers." In addition, employers with fewer than 500 employees that employ healthcare providers or emergency responders and that elected to exclude those employees from the federal Families First Coronavirus Response Act (FFCRA) are Covered Employers.

What Employees Are Covered? 

All California employees who work at a Covered Employer are eligible for CPSL if they leave their home or other place of residence to perform work for the employer.

While characterized by some as a "gap-filler" to ensure available leave for employees working for employers with more than 500 employees, this law differs from the FFCRA in several respects. Notably, healthcare workers and emergency responders can be excluded from emergency paid sick leave under the FFCRA, but they cannot be excluded from the right to take CPSL.

Are Non-Employees Covered? 

Outside of the food sector, only employees are covered. For the food sector, however, it appears that any worker is covered if he or she works as an employee or in another capacity for a Covered Employer that is in the food industry, that operates a food facility, or that delivers food from a food facility. (See here for a definition of "food sector worker.")

When Will the Law Be in Effect?

For food sector workers who were covered by the Governor's executive order, the law is retroactive to April 2020.

AB 1867 makes clear that leave already provided to food sector workers under the executive order counts against any leave time provided under the new law. In other words, food sector workers are not entitled to double up CPSL by adding another period of paid sick leave on top of the leave provided previously pursuant to the executive order.

For all other workers, the law takes effect within 10 days of its enactment—that is, by September 19, 2020. The law will remain in effect until December 31, 2020, or the expiration of any extension of emergency paid sick leave provided by the FFCRA, whichever is later.

What Leave Must Be Provided and Under What Circumstances? 

Covered employers must provide supplemental paid sick leave to workers who would otherwise leave their home or residence for work and are unable to work due to any of the following reasons:

• Subject to a federal, state, or local COVID-19 quarantine or isolation order; or
• Whose healthcare provider advises the employee to self-quarantine or self-isolate due to concerns related to COVID-19; or
• Who is prohibited from working by the employer due to health concerns related to potential transmission of COVID-19.

Workers who are considered by the employer to be full-time are entitled to 80 hours of CPSL. Workers who are not full-time but who worked or were scheduled to work at least 40 hours, on average, per week in the two weeks preceding the date the worker takes leave are also entitled to 80 hours.

Other workers—less than full time or who did not average 40 hours of work or scheduled work in preceding weeks—are also entitled to CPSL but in lower amounts. Workers who have normal weekly schedules are entitled to the number of hours the worker is normally scheduled for over a two-week period.

Workers who work variable hours are entitled to 14 times the average number of hours worked per day during the prior six months of employment. (If the worker had been employed for less than six months, the statute specifies different calculation methods.)

CPSL is in addition to any paid sick leave to which a worker is entitled under the California sick leave law, Labor Code section 246 (which generally provides for 24 hours or three days of paid sick leave per year). However, if the employer already provides another supplemental benefit payable for COVID-related reasons and at the same or higher pay rates, the employer may count those hours towards the new CPSL. But employers cannot require any other paid or unpaid leave time be taken before the remaining number of CPSL hours are exhausted.

Workers can choose the number of CPSL hours to use up to the limit of the legal allotments. The pay rate is the regular rate of pay for the last pay period (or state or local minimum wage, whichever is the highest of the three). Total compensation is capped at $511 per day and $5,110 per week.

Are There Other Requirements? 

Yes, a few of them.

The California Labor Commissioner has created notices that Covered Employers are required to post or distribute electronically. It can be found here for Covered Employers in the Food Sector and here for other Covered Employers.

Covered Employers are obligated to inform employees other than those in the food sector of the amount of CPSL available for their use either by including it on employees' wage statements or paystubs, or in a separate writing provided on pay days. (This requirement is consistent with, but in addition to, the current requirement in the California sick leave law to provide notice to employees of available sick time.)

Records of CPSL usage must be kept for three years.

How Is the Law Enforced?

The Labor Commissioner enforces the law, and is authorized to sue if necessary.

The cost of violating the law is three times the dollar amount withheld or $250, whichever is greater, for each day sick leave is not provided. Aggregate penalties cannot exceed $4,000 per employee.

Practice Pointer: All employers, especially those in the healthcare sectors, must review existing paid sick leave policies and implement supplemental paid leave if comparable leave is not already provided. Employers other than those in the food sector must take steps to add reference to available CPSL on wage statements or in a separate document. Failure to comply could be costly.

Handwashing Requirement

The new law also enshrines a requirement to permit any individuals who work with food in food facilities—a defined term that broadly includes operations in which food is consumed, whether there is a charge for food or not—to wash their hands every 30 minutes "and additionally as needed."

Practice Pointer: Food facility employers need to ensure a place for washing hands is readily available and that employees have the opportunity to take time to wash their hands as needed (and at least every 30 minutes).

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.