Highlight

  • California Gov. Gavin Newsom on Sept. 9, 2020, signed AB 1867, immediately expanding paid sick leave protections related to COVID-19.
  • AB 1867 closes a loophole in the federal Families First Coronavirus Response Act (FFCRA) by mandating that employers with more than 500 employees provide supplemental paid sick leave.
  • Under the new law, certain employees may be entitled to take up to 80 hours of paid sick leave for qualifying conditions.

California Gov. Gavin Newsom dramatically expanded coverage and availability of COVID-19-related paid sick leave by signing AB 1867 on Sept. 9, 2020. As a budget trailer bill, AB 1867 took effect immediately upon signing. The law is designed to remedy a significant exclusion from Families First Coronavirus Response Act (FFCRA) and expand upon Gov. Newsom's Executive Order N-51-20, which required that California food sector workers be provided with paid sick leave.

Under the new law, private companies employing 500 or more employees nationwide and all entities employing healthcare providers or emergency responders regardless of their employee count must provide supplemental paid sick leave to employees who 1) must quarantine or isolate because of COVID-19 pursuant to a federal, state or local quarantine or isolation order, 2) are advised by a healthcare provider to self-quarantine or self-isolate because of COVID-19, or 3) are prohibited from working by the employer because of health concerns related to potentially transmitting COVID-19.

The amount of leave that must be provided turns on whether an employee is full time, part time or works on a variable shift. Full-time employees (40-plus hours per week in the two weeks prior to taking COVID-19 supplemental leave) are entitled to 80 hours of COVID-19 supplemental paid sick leave, while part-time employees working a normal weekly schedule are entitled to supplemental paid sick leave equal to the number of hours scheduled to be worked over two weeks. Employees working a variable number of hours (that is, part-time employees on a nonfixed weekly schedule) are entitled to supplemental paid sick leave equal to 14 times the average number of hours worked each day in the six months preceding the date that leave was required (e.g., an employee who worked two hours per day on average over the last six months would be entitled to 28 hours of supplemental paid sick leave).

While each hour of supplemental paid sick leave must be paid at a rate equal to the employee's regular rate of pay, employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee for COVID-19 supplemental paid sick leave. If an employer previously provided COVID-19 supplemental paid sick leave to an employee, the employer may credit the time provided against the requirement imposed in AB 1867 if it pays the difference, if any, between the rate paid for that leave and the regular rate of pay required by AB 1867.

An employer may not use any other paid or unpaid leave, paid time off or vacation time provided before the covered worker uses COVID-19 supplemental paid sick leave for qualifying reasons. Notably, the requirement to provide COVID-19 supplemental paid sick leave expires on Dec. 31, 2020.

The overlapping frameworks of multiple local, state and federal rules, regulations, statutes and ordinances on the topic of COVID-19 paid sick leave make it critical that employers carefully monitor all continuing developments regarding paid sick leave.

For more information or questions on AB 1867 and its potential impact on employers, contact the authors.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.