Key Points

• Assembly Bill 1867 requires private employers with 500 or more employees nationwide, as well as employers of health care providers and emergency responders, to provide COVID-19 supplemental paid sick leave to their California employees.
• Full time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave.
• Employers are required to provide written notice of the amount of supplemental COVID-19 paid sick leave available on employees' itemized wage statements or a separate writing. Employers must update their wage statements no later than the pay period following the bill’s Sept. 9, 2020 enactment.
• It is important to note this law takes effect immediately, and employers must begin providing the supplemental paid sick leave no later than Sept. 19, 2020.

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On Sept. 9, 2020, Governor Newsom signed Assembly Bill 1867, which requires private employers with 500 or more employees nationwide, as well as employers of health care providers and emergency responders, to provide COVID-19 supplemental paid sick leave to their California employees.

AB 1867 is intended to "close the gaps in paid sick days" between federally mandated COVID-19 paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) and COVID-19 paid sick leave for food sector workers under Governor Newsom's prior executive order.

Who Is Covered?

The new law covers three groups of "hiring entities":

1. Private sector employers that have 500 or more employees in the United States.
2. Public sector agency employers that employ health care providers or emergency responders that elected to exclude such employees from emergency paid sick leave under the federal FFCRA.
3. Private employers with fewer than 500 employees, including public sector agency employers, that employ health care providers or emergency responders that elected to exclude such employees from emergency paid sick leave under the federal FFCRA.

The new law only applies to employees who are required to leave their home to perform work for the employer.

Reasons For Leave

AB 1867 requires employers to provide COVID-19 supplemental paid sick leave to workers who are unable to work due to any of the following reasons:

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

Amount Of Leave

An employee is entitled to 80 hours of COVID-19 supplemental paid sick leave, if (1) the employer considers the employee to work “full time,” or (2) the employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.

Otherwise, the following calculations apply:

• If the employee has a normal weekly schedule, the employee is entitled to supplemental leave in the amount of the total number of hours the covered worker is normally scheduled to work for the hiring entity over two weeks.
• If the employee works a variable number of hours, the employee is entitled to supplemental leave in the amount of 14 times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the employer has worked for the hiring entity.
• If the employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the employee is entitled to supplemental leave in the amount of the total number of hours the employee has worked for that employer.

There are exceptions for certain firefighters.

An employee may determine how many hours of COVID-19 supplemental paid sick leave to use up to the total number to which the employee is entitled. The employer is required to make COVID-19 supplemental paid sick leave available for immediate use by the employee, upon oral or written request.

Leave must be paid at the employee's regular rate of pay. However, employers are not 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 an employee for COVID-19 supplemental paid sick leave.

AB 1867 prohibits employers from requiring an employee to use any other paid or unpaid leave, paid time off, or vacation time before supplemental COVID-19 paid sick leave or in lieu of COVID-19 supplemental paid sick leave. The law also expressly states that this leave is additional to any paid sick leave that may already be available to employees under Labor Code Section 246.

Offset

If an employer already provides employees with a supplemental benefit, such as supplemental paid leave, that is payable for the reasons listed in the law, and that would compensate the employee in an amount equal to or greater than the amount required under the law, then the employer may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide.

If an employer provided leave but did not pay it at the rates required under the new law, the law allows the employer to retroactively provide supplemental pay to employees in an amount equal to or greater than that required under the law, rather than providing additional leave time.

Wage Statement And Posting Requirements

Employers are required to provide written notice of the amount of supplemental COVID-19 paid sick leave available on employees' itemized wage statements or a separate writing. Employers must update their wage statements no later than the pay period following the bill’s Sept. 9, 2020 enactment.

By seven days after the law's effective date, the California Labor Commissioner must make available a model notice to provide to workers. The bill permits notice by electronic means in lieu of posting if an employer's workers do not frequent a workplace.

Food Sector Employees

AB 1867 also codifies Executive Order (EO) N-51-20, which provides supplemental COVID-19 paid sick leave for food sector employees.

Sunset

These provisions expire on Dec. 31, 2020, or upon the expiration of any federal extension of the federal FFCRA, whichever is later.

Employer Takeaways

Immediately, employers should review their policies and practices to assure compliance with AB 1867, particularly in light of the patchwork of local paid sick leave ordinances and the FFCRA exemption for health care provider and emergency responder employees upon which employers may have previously relied.