On September 9, 2020, Governor Newsom signed Assembly Bill 1867, which enacts new Labor Code §§ 248, 248.1, and 248.5, and provides supplemental paid sick leave benefits to certain employees who are not covered by the federal Families First Coronavirus Response Act (FFCRA). The FFCRA is the subject of a previous post and can be accessed here. The new law is effective as of September 19, 2020, and will expire on December 31, 2020, or upon the expiration of any extension of the Emergency Paid Sick Leave Act established by the FFCRA. Unlike the FFCRA (which applies only to employers with fewer than 500 employees), the new California law requires employers with 500 or more employees nationwide to provide supplemental paid sick leave to qualifying employees for various reasons related to COVID-19. Smaller employers of emergency responders or health care providers are also covered.

SUPPLEMENTAL PAID SICK LEAVE

Under the new law, “hiring entities” with 500 or more employees nationwide must provide employees with COVID-19 supplemental paid sick leave if the employee is unable to work due to one of the following circumstances:

1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

2. The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

3. The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

• Full-time employees (those the employer considers “full time” or those employees who worked or were scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employees took COVID-19 supplemental paid sick leave) are entitled to up to 80 hours of supplemental paid sick leave, not to exceed $511 per day and up to $5,110 total.

• Part-time employees with normal weekly schedules are entitled to the number of hours of supplemental paid sick leave equal to the average number of hours that the employee works over a two-week period, up to $5,110 total.

• Part-time employees with variable schedules are entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the date (or the total number of months the employee has worked for the employer if the employee has been employed for more than two weeks but less than six months) the employee took supplemental paid sick leave, up to $5,110 total.

• Part-time employees with variable schedules who have worked for the employer for less than two weeks are entitled to supplemental paid sick leave equal to the total number of hours the employee has worked for the employer, up to $5,110 total.

Notably, the new law itself does not define what constitutes a “federal, state, or local quarantine or isolation order related to COVID-19.” According to guidance issued by the Division of Labor Standards Enforcement (DLSE), "[w]hen the Executive Order or the Labor Code refers to a 'quarantine or isolation order,' this means a quarantine or isolation order that is specific to the worker’s circumstances, not a general stay-at-home order. For example, an order that directs individuals who live with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking COVID-19 Supplemental Paid Sick Leave." Similarly, eligibility for this supplemental leave applies if the employer itself requires the worker to stay at home. In addition, this new supplemental paid sick leave is just that – it supplements any existing paid sick leave to which the employee may already be entitled under the California Paid Sick Leave Law (e.g., pursuant to Labor Code § 246). Interestingly, however, the new law is somewhat narrower than the FFCRA because it does not provide supplemental leave to parents caring for children whose school or place of care is closed due to COVID-19.

The DLSE has advised that "[a] hiring entity 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." However, an employer may request certain documentation if there is other information that the leave request is not "for a valid purpose."

NOTICE AND WAGE STATEMENT REQUIREMENTS

Like the FFCRA, the new law has a notice requirement, which must be posted at the workplace or distributed electronically to employees who do not frequent the workplace. The DLSE has issued a "model" Notice for non-food sector workers that can be found here. A similar Notice for food sector workers is also available here. Foreign language versions of the Notice are coming soon. The DLSE has also posted an FAQ on California COVID-19 Supplemental Paid Sick Leave, which can be found here. Employers are also required to update their wage statements to include the amount of supplemental paid sick leave available to employees under the law.

INTEGRATION WITH OTHER LEAVE REQUIREMENTS

Employers cannot require employees eligible for supplemental paid sick leave under the new law to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses supplemental paid sick leave or instead of supplemental paid sick leave. However, under some circumstances, an employer may count and offset supplemental leave that is required under a local ordinance. The DLSE provides the following example: "if a hiring entity provides a full-time worker 40 hours of COVID-19 related supplemental paid sick leave pursuant to a local ordinance, those 40 hours would count toward the hiring entity's obligations under California law so long as the leave provided is for a reason listed under California law and is at least at the same rate of pay as California law requires."

California employers, particularly those that were exempt from the FFCRA, must continue to adjust to the extraordinary circumstances of the Coronavirus outbreak, and implement appropriate personnel policies and workplace practices to ensure compliance with the new supplemental paid sick leave requirements.