UPDATE: On March 19, 2021, SB 95 was signed into law, which provided COVID-19 supplemental paid sick leave (SPSL) for certain covered employees who were unable to work due to COVID-19, including due to quarantine requirements. SB 95 was applied retroactively to January 1, 2021 and was in place until September 30, 2021.
Last week, on September 9, Governor Newsom signed AB-1867 into law. AB-1867, effective immediately, makes sure that all California employees are eligible for COVID-19-related supplemental paid sick leave (“SPSL”) by filling in the gaps lefts by the federal Families First Coronavirus Response Act (“FFCRA”). The FFCRA provides for 2 weeks of COVID-19-related paid sick leave for eligible employees. However, it only applies to employers with fewer than 500 employees. It further allows employers of certain health care providers or emergency responders to elect to exempt them from FFCRA protections. In fact, it is estimated that the FFCRA leaves out up to 80% of the workforce.
COVID-19 Food Sector Supplemental Paid Sick Leave–Labor Code § 248
AB-1867 builds upon Governor Newsom’s Executive Order N-51-20, signed in April 2020. The executive order requires that a hiring entity with 500 or more employees provide an eligible food-sector worker with supplemental paid sick leave related to COVID-19. AB-1867 adds Labor Code § 248, which provides for two weeks of “COVID-19 food sector supplemental paid sick leave” for food-sector workers affected by COVID-19. It applies to employers who are private entities with 500 or more employees in the United States.
Food-sector workers are entitled to SPSL if they are unable to work because they are:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- Prohibited from working by the food-sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
For those with normal work schedules, they are entitled to SPSL for the same number of hours as they usually work in 2 weeks. Those with variable schedules are entitled to paid hours in an amount equal to 14 times the average number of hours worked per day over the past six months. For those who worked for less than 6 months, calculations are made looking at the hours worked throughout the entire period.
This paid sick leave is in addition to any paid sick leave available to the food-sector worker under existing law as specified, but is not in addition to the supplemental paid sick leave available under Executive Order N-51-20.
The worker is is allowed to determine how many hours of COVID-19 food-sector SPSL to use, up to the total amount to which they are entitled. They cannot be required to use any other paid or unpaid leave time, time off or vacation time before being allowed to use SPSL. Previously provided supplemental benefits for same purposes credited.
SPSL-related rights are enforced through the Labor Commissioner through the same mechanisms as “paid sick days,” “paid sick leave,” or “sick leave” under existing law.
Labor Code § 248 applies retroactively to April 16, 2020. It expires the later of December 31, 2020 or upon expiration of the FFCRA emergency paid sick leave, though if a worker is taking SPSL during the expiration period they get to take the full amount.
COVID-19 Supplemental Paid Sick Leave–Labor Code § 248.1
AB-1867 also adds Labor Code § 248.1, which establishes “COVID-19 supplemental paid sick leave” to cover workers who work for private employers with 500 or more employees. It also covers health care providers or emergency responders who were exempted from the FFCRA’s emergency paid sick leave coverage, including those who work for public entities. (Section 248.1 excludes food-sector workers, who are covered under Section 248.) As with Labor Code § 248, Section 248.1 it provides up to 2 weeks of SPSL for workers who are:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- Prohibited from working by the worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
SPSL hours are calculated in the same manner as in Labor Code § 248. Similar to § 248, COVID-19 SPSL is in addition to other paid sick leave, and employees cannot be required to use other paid or unpaid leave first. This section is also enforced by the Labor Commissioner, who has the authority to issue citations, file a civil action, and use administrative proceedings. And, as with § 248, this section expires the later of December 31, 2020 or upon expiration of the FFCRA emergency paid sick leave.
Hand-Washing Protections–Health and Safety Code § 113963
AB-1867 codifies the requirement in Executive Order N-51-20 that food employees in food facilities be permitted to wash their hands every 30 minutes and additionally as needed.
Funding and Support for AB-1867
The bill allocates $100,000 to the Labor Commissioner to implement and enforce these provisions. It also requires that the Labor Commissioner create and make available a model notice for COVID-19 supplemental paid sick leave for covered workers and permits electronic posting of this notice if a hiring entities’ covered workers are not at their workplaces.
Mandatory Mediation for Small-Employer CFRA Claims–Government Code § 12945.21
AB-1867 also contains a provision that is contingent on the signing into law of SB-1383, the bill that expands the California Family Rights Act (“CFRA”). It adds Government Code § 12945.21, which provides that, before employees can pursue CFRA claims against small employers (5 to 19 employees), they must first engage in a small employer family leave mediation pilot program with the California Department of Fair Employment and Housing (“DFEH”) if requested by the employer. The employer would have 30 days from receipt of a right-to-sue notice to request the mediation. The employee’s statute of limitations would be tolled until the mediation. The DFEH would be required to create the program, and the program would sunset on January 1, 2024. The intention is to create an opportunity for mediation and reconciliation for small employers before litigation takes place.
