California Expands COVID-19 Paid Sick Leave

Next time you see your HR Director, you may want to offer to take them to lunch or give them that $100 American Express gift card you often eye while in line at Target. If you knew the ever-changing legal landscape they’ve had to keep up with this year, you’d acknowledge they’re deserving of some kind of pick-me-up!

California enacted Assembly Bill 1867 on September 9, 2020, requiring all private employers with 500 or more employees as well as employers in essential industries previously Families First Coronavirus Response Act (FFCRA) exempt to provide COVID-19 supplemental paid sick leave for their California employees. Employers must begin providing this to both full time and part time employees no later than September 19, 2020 – but many businesses aren’t even aware that this passed and remains in effect until the later of December 31, 2020 or expiration of any federal extension of the

The new Labor Code provision – known as AB 1867—extends COVID-19 Supplemental Paid Sick Leave to health care employees and emergency responders who were not extended paid sick leave by their employers under the federal Families First Coronavirus Response Act, without regard to the size of their employer.

FFCRA only applies to employers with fewer than 500 employees, and the new law aims to expand sick leave to private employers not covered under similar federal/state laws.

Supplemental paid sick leave under the new law is provided in addition to paid sick leave accrued by employees under state law pursuant to California Labor Code section 246.  It is important to keep in mind that the law prohibits employers from requiring an employee to use any other paid or unpaid leave, paid time off, or vacation time before using supplemental paid sick leave or in lieu of supplemental paid sick leave.

What are the circumstances that allow a worker to take COVID-19 Supplemental Paid Sick Leave?

Sick leave must relate to the employee itself, and does not apply to the care of others. The employee must be unable to work due to one of the following reasons:

    1. The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
    2. The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19
    3. The worker is prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19
  • A worker who is considered full-time or who worked or was scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave.
  • Employees who work a variable number of hours are entitled to leave equaling 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took COVID-19 supplemental paid sick leave; or
  • Employees who work a variable number of hours and have worked for a period of 14 or fewer days are entitled to leave equaling the total number of hours the employee has worked for that employer.

Employers may not deny a worker COVID-19 Supplemental Paid Sick Leave based solely on a lack of certification from a health care provider.  A worker is entitled to take COVID-19 Supplemental Paid Sick Leave immediately upon the worker’s oral or written request.  The leave is not conditioned on medical certification.

Non-compliance penalties include being subject to an administrative penalty of at least $250 per day, but not to exceed $4,000 in the aggregate. The Labor Commissioner or the Attorney General may also bring a civil action to collect other legal or equitable relief, including reinstatement, back pay, the payment of sick days unlawfully withheld, and liquidated damages.

For employers in the food sector industry, AB 1867 codifies prior Executive Order N-51-20, which required food sector employers with 500+ employees to provide COVID-19-related paid sick leave to California employees.

As the pandemic continues to rage on, expect more changes to employment laws.  We will keep you posted.  By the way, if you don’t have an HR Director, you can buy us a coffee instead…at the least. ?