On 9 September 2020 a Bill which requires private entities with 500 or more employees to provide up to 80 hours of COVID-19-related supplemental paid sick leave to their California employees became law. This article provides details.
Who is affected?
The Bill (Assembly Bill or AB 1867) applies to 'hiring entities,' defined as '...any kind of private entity whatsoever...' with 500 or more employees in the United States. The term 'hiring entities' also includes public or private health care provider employees and first responders, whose employers elected to exclude them from emergency paid sick leave requirements under the Families First Coronavirus Response Act (FFCRA).
Why were these provisions introduced?
Under the new rules, COVID-19-related paid sick leave will be provided to employees not previously covered under the FFCRA and the food sector specific executive order signed by Governor Newsom on 16 April 2020. As discussed here https://theword.iuslaboris.com/hrlaw/insights/paid-sick-leave-and-handwashing-for-the-food-sector-new-californian-rules, this order provided supplemental paid sick leave (CSPSL) to a specific category of employees defined as 'Food Sector Workers.' No this executive order has been codified into law (with minor changes discussed below), expanded to non-critical infrastructure Food Sector Workers, and made retroactive to the date it was signed. In addition, CSPSL has been expanded to all 'hiring entities' as defined above. These new provisions have been codified in the California Labor Code.
In what circumstances is an employee entitled to use CSPSL?
An employee who is required to leave home to perform work is entitled to CSPSL if the employee is unable to work due to the following:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
- The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.
How much CSPSL Is an employee owed?
The total number of CSPSL hours to which an employee is entitled depends on the employee's regular work schedule.
Full-time employees
An employee is entitled to 80 hours of CSPSL if the employer considers the employee 'full time,' or 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 leave.
Part-time employees with fixed schedules
Employees who are not considered 'full time', and work normal or fixed weekly schedules will receive an amount of CSPSL equal to the total number of hours they are normally scheduled to work for the employer over two weeks.
Part-time employees with varied schedules
Employees who work irregular or a variable number of hours receive 14 times the average number of hours they worked each day for the employer in the six months preceding the date they took leave. If the employee has worked for the employer for less than six months, the total length of their employment is used, unless the employee has been employed for 14 days or less. In that case, the total number of hours worked is used.
Active firefighters
AB 1867 specifically addresses active firefighters. Active
firefighters that are scheduled to work more than 80 hours for
their employer in the two weeks preceding the date they took leave
are entitled to an amount of CSPSL equal to the total number of
hours they were scheduled to work for the employer in those two
preceding weeks.What is the rate of pay an employee receives?
Employees utilising CSPSL must be paid at an hourly rate equal to the highest of the following:
- the employee's regular rate of pay for the last pay period (including amounts pursuant to any applicable collective bargaining agreement);
- the state minimum wage; or
- the local minimum wage.
Like the FFCRA, the new provisions cap the total amount employers are required to pay for an employee's CSPSL. Employers are not required to pay more than USB 511 per day and USD 5,110 in the aggregate to any employee for CSPSL.
Payment of CSPSL to the employee must be made no later than the payday for the next regular payroll period after the leave was taken.
When must an employer make CSPSL available to an employee?
An employer must make CSPSL available for immediate use by the employee upon oral or written request.
Can an employer dictate how CSPSL is used?
No. The employee determines how many hours of Employers are also prohibited from requiring the employee to use any other paid or unpaid leave, vacation time, or PTO before, or in lieu of, using CSPSL.
When do these provisions take effect?
For all 'hiring entities,' (all private entity non-food sector workers, since food sector workers were already granted CSPSL), AB 1867 will take effect 'not later than ten days' after the enactment of the law. AB 1867 became law after Governor Newsom signed it on 9 September 2020. This means CSPSL requirements take effect no later than 19 September 2020.
How long does an employer need to offer CSPSL?
The requirements to provide CSPSL to covered employees expire on 31 December 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.
What happens if an employer already provided COVID-19-related paid sick leave?
Employers who already provided supplemental paid leave for circumstances related to COVID-19, as discussed above may count those hours toward the required amount of CSPSL hours under AB 1867. However, compensation for any qualifying supplemental paid leave provided to the employee must have been greater than, or equal to, the amount of compensation the employee would have received under AB 1867. If the employer failed to pay the guaranteed rate, the law allows the employer to make retroactive supplemental payments to the employee to make up for this shortfall, rather than provide additional leave time.
Are there other requirements of which to be aware?
Yes. AB 1867 incorporates existing law into its notice, enforcement, and remedial provisions. Employers should adopt practices consistent with notice requirements found under California's Healthy Workplaces, Healthy Families Act of 2014 (HWHFA), which include displaying posted notice of information relating to employee paid sick days.
AB 1867 requires the California Labor Commissioner to make available a model notice to provide to workers by 16 September 2020. For employees who work remotely, or do not frequent the workplace, the notice may be provided electronically via email.
Furthermore, 'hiring entity' employers, but not employers of 'Food Sector Workers' under the previous executive order https://theword.iuslaboris.com/hrlaw/insights/paid-sick-leave-and-handwashing-for-the-food-sector-new-californian-rules, must include CSPSL balances on their employees' paystubs, or in a separate writing, in order to be compliant. See Cal. Lab. Code § 248.1(d)(1)(A), which incorporates by reference Cal. Lab. Code §246(i). Based on AB 1867's compliance date, 'hiring entity' employers should act quickly to incorporate these revised wage statement obligations.
Are there penalties for non-compliance?
Yes, employers can face civil penalties for violations. With respect to penalties, if paid sick days were unlawfully withheld, the dollar amount is measured by the paid sick days withheld from the employee multiplied by three, or USD 250, whichever amount is greater, but may not exceed an aggregate civil penalty of USD 4,000.
If a violation occurs that results in other harm to the employee, like discharge of employment, the penalty shall include a sum of USD 50 for each day or portion thereof that the violation occurred or continued, not to exceed an aggregate civil penalty of USD 4,000.
In addition, the Labor Commissioner may bring a civil action against any employer on behalf of the aggrieved employee for violating AB 1867. The relief available includes: reinstatement, back pay, payment of leave withheld, payment of an additional sums as liquidated damages, the penalties listed above, injunctive relief, reasonable legal fees and costs, interest on all amounts due, and other remedies that may be provided by law.
What are some other aspects of AB 1867?
Mandatory handwashing requirements for 'Food Sector Workers'
'Food Sector Workers' must be allowed to wash their hands every 30 minutes.
Mediation pilot programme for small employers
AB 1867 also includes a small employer family leave mediation pilot programme (for employers with between five and 19 employees). This is designed to assist in the resolution of claims relating to non-compliance with expanded family and medical leave. However, this provision will only become operative if Senate Bill 1383 is enacted and takes effect on or before 1 January 2021.
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.
