Updated: California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United StatesSeptember 23, 2020
On September 9, 2020, Governor Newsom signed into law Assembly Bill No. 1867, which, among other things, provides COVID-19 supplemental paid sick leave to certain employees that are not covered by the Families First Coronavirus Response Act (the “FFCRA”). The law goes into effect immediately and requires covered employers to provide COVID-19 supplemental paid sick leave no later than September 19, 2020. The requirement will remain in effect until the latter of December 31, 2020, or the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.
- Covered Employers and Employees. A covered employer includes: (1) a private sole proprietorship or any kind of private entity whatsoever, including, but not limited to, any kind of corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise that has 500 or more employees in the United States; or (2) an entity, including a public entity, that employs health care providers or emergency responders and has elected to exclude such employees from emergency paid sick leave under the FFCRA. A covered employee is a person who is employed by a covered employer and “leaves the person’s home or other place of residence to perform work for the person’s” employer. The law does not apply to independent contractors.
- Qualifying Reasons for COVID-19 Supplemental Paid Sick Leave. The law mandates that a covered employer provide supplemental paid sick leave if an employee is unable to work for any of the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19, meaning a quarantine or isolation order that is specific to the employee’s circumstances, not a general stay-at-home order;
- The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- The employee is prohibited from working by the covered employer due to health concerns related to the potential transmission of COVID-19.
- Amount of COVID-19 Supplemental Paid Sick Leave. Upon the oral or written request of an employee, a covered employer must make available for immediate use COVID-19 supplemental paid sick leave as follows:
- If an employee is classified as a full-time employee or 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 supplemental paid sick leave, the employee is entitled to 80 hours of leave.
- If the employee has a normal weekly schedule, the employee is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks.
- If the employee works a variable number of hours, the employee is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took supplemental paid sick leave. If the employee has worked for the employer over a period of fewer than six months but more than 14 days, this calculation instead must be made over the entire period the employee has worked for the employer.
- If the employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the employee is entitled to the total number of hours the employee has worked for the employer.
- Compensation Rate. Each hour of COVID-19 supplemental paid sick leave must be compensated at a rate equal to the highest of the following: (1) the employee’s regular rate of pay for the employee’s last pay period, including pursuant to any collective bargaining agreement that applies; (2) the state minimum wage; or (3) the local minimum wage to which the employee is entitled.
- Cap on Amount of Leave. A covered employer is 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.
- Interaction with Other Available Relief. The total number of hours of COVID-19 supplemental paid sick leave to which an employee is entitled is in addition to any paid sick leave that may be available to the employee under California Labor Code section 246. An employer may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the employee before the employee uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.
- Employer Offset. If a covered employer already provides an employee with a supplemental benefit that is payable for one of the qualifying reasons set forth above and that would compensate the employee in an amount equal to or greater than the amount of compensation for COVID-19 supplemental paid sick leave to which the employee is entitled, then the employer may count the hours of the other paid benefit or leave towards the total number of hours of COVID-19 supplemental paid sick leave that the employer is required to provide to the employee. If the employer already provided supplemental paid leave between March 4, 2020, and September 9, 2020, but at a lower rate than is required, the employer may retroactively compensate the employee for the pay differential, in which case those hours may count towards the total number of hours of COVID-19 supplemental paid sick leave required under the law.
- Notice. Starting with the next full pay period following the law’s enactment on September 9, 2020, employers must provide employees with written notice of the amount of leave available under the law on an itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. Additionally, the Labor Commissioner made available a model notice that employers must post in the workplace or disseminate through electronic means, such as by electronic mail, if employees do not frequent a workplace.
- Enforcement. The law mandates that the Labor Commissioner enforce the requirements as if COVID-19 supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave” under various provisions of the California Labor Code and authorizes the Labor Commissioner to cite employers for failing to comply with the law. Employees using or attempting to exercise their rights to COVID-19 supplemental paid sick leave are protected from retaliation under Labor Code section 246.5(c).
Wages and Overtime