[Post Updated September 28, 2020]

On Wednesday, September 9, 2020, Governor Newsom signed AB 1867 into law providing supplemental paid leave for California employees and codified provisions of Executive Order N-51-20 that had already provided paid sick leave for “food sector workers.”  California employers must take time to review the new law to ensure compliance, even if they were covered under the prior Executive Order.  This Friday’s Five focuses on five issues of the new law employers should review:

1. California COVID-19 Supplemental Paid Sick Leave

Covered Employees:

The new law covers workers who leave their home to complete work for the employer.  The law also provides coverage to health care providers and emergency responders whose employers have elected to exclude them from the paid sick leave coverage of the Families First Coronavirus Response Act (FFCRA).  It is important to note that this provision granting paid sick leave to health care providers and emergency responders will apply to employers with less than 500 employees.  Food sector employees are excluded from the supplemental paid sick leave if they qualify for the Food Sector Worker Supplemental Paid Sick Leave discussed below.

Covered Employers:

The paid sick leave applies to employers with 500 or more employees in the United States.  As noted above, employers with less than 500 employees who employ health care providers and emergency responders who have elected to exclude these employees from coverage under the FFCRA are also covered under this new law.

Amount of Leave:

Employers must provide supplemental paid sick leave to each covered worker who is unable to work due to any of the following reasons:

(A) The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.

(B) The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.

(C) The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

The covered worker is entitled to 80 hours of COVID-19 supplemental paid sick leave if the employee is considered to be “full time” by the hiring entity, or if the worker works, on average, 40 hours per week in the two weeks preceding the date the worker took COVID-19 supplemental paid sick leave.

If the worker is not full time, and if the worker has a normal weekly schedule, the employee is eligible to take the total number of hours normally scheduled over two weeks.  If the worker is not full time and works a variable schedule, the worker is entitled to 14 times the average number of hours worked each day in the last six months.  If the worker has worked fewer than six months but more than 14 days, then the calculation will be made over the entire period the worker has worked.

Cap On Paid Leave:

The amount of supplemental paid sick leave is capped at $511 per day and $5,110 in the aggregate to a covered worker.

Required Notice:

The Labor Commissioner published the model notice for non-food sector employees that employers may use to meet the requirement to notify their employees of the new law: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf

Employers who have workers that do not frequently visit the workplace, may use electronic means to distribute the notice, such as email.

Effective Date:

The law becomes effective no later than 10 days after enactment, which was September 9, 2020.  This means employers are required to provide COVID-19 Supplemental Paid Sick Leave to non-food sector employees starting September 19, 2020 at the latest.

Expiration Date:

The COVID-19 supplemental paid sick leave expires on December 31, 2020 (the same as the FFCRA), or upon the expiration of the Emergency Paid Sick Leave Act if it is extended past December 31, 2020.

Open Issues:

A primary issue that many employers struggle with and which is not addressed in the new law is the type of documentation requirements employers may have in order to approve this leave.  The law is clear that employees may make oral or written requests for the leave, but the law is silent on what type of documentation employers may require from the employee to establish that they were entitled to the leave.

2. Food Sector Worker Supplemental Paid Sick Leave

Another part of the new law enacted supplemental paid sick leave for food sector workers.  The Governor issued Executive Order N-51-20 on April 16, 2020 requiring supplemental paid sick leave for food sector workers at the beginning of the pandemic.  The new law is retroactive to April 16, 2020 to address any concerns that the Governor did not have authority to issue the Executive Order.

Food Sector Workers:

The new law applied to “Food Sector Workers” which is defined as any person who satisfies one of the following criteria:

  1. The person works in an industry or occupation defined in paragraph (B) of Section 2 of IWC Wage Order 3-2001 (Canning, Freezing, and Preserving Industry), paragraph (H) of Section 2 of IWC Wage Order 8-2001 (Industries Handling Products After Harvest), paragraph (H) of Section 2 of IWC Wage Order 13-2001 (Industries Preparing Agricultural Products for Market, on the Farm), or paragraph (D) of Section 2 of IWC Wage Order 14-2001 (Agricultural Occupations).
  2. The person works for a hiring entity that operates a food facility, as defined in Section 113789 of the Health and Safety Code.
  3. The person delivers food from a food facility, as defined in Section 113789 of the Health and Safety Code, for or through a hiring entity.

The Labor Commissioner’s Office, which had authority to enforce the Governor’s prior Executive Order, interpreted this definition in the Executive Order to apply to “grocery workers, restaurant or fast food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.”

Qualifying Reasons For Leave:

The food sector worker is entitled to paid sick leave if unable to work due to any of the following reasons:

  1. The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  2. The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  3. The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Amount of Leave:

The employee is entitled to 80 hours of COVID-19 food sector supplemental paid sick leave if they are considered “full time” or if, on average, they work at least 40 hours per week for the two week preceding the date the worker took COVID-19 food sector supplemental paid sick leave.  For part-time employees, if they work a normal weekly schedule, the are entitled to the total number of hours normally scheduled to work over two weeks.  If the worker has a variable schedule, they are entitled to 14 times the average number of hours worked each day in the last six months prior to the leave.  If the worker has worked for fewer than six months, the calculation is made over the entire period of time the worker has worked.

If employers have already provided leave workers under Executive Order N-51-20, the employer is given credit for this leave and does not have to provide additional leave as created by this law.

The amount of paid leave is capped at $511 per day and $5,110 in the aggregate to each worker.

The food sector worker supplemental paid sick leave will expire at the same time as the Families First Coronavirus Response Act (FFCRA), which is current set to expire on December 31, 2020, but will be extended to expire at the same time if the federal Emergency Paid Sick Leave Act is extended.

Required Notice:

Under California law, hiring entities are required to display the applicable poster(s), in a conspicuous place that contains information about COVID-19 Supplemental Paid Sick Leave. The Labor Commissioner published this updated notice for employers with 500 or more employees with food sector workers, which can be found here: https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf

Employers who have workers that do not frequently visit the workplace, may use electronic means to distribute the notice, such as email.

3. Hand Washing

The new law also adds a requirement that all food employees working in any food facility, as defined in Section 113789 of the Health and Safety Code, shall be permitted to wash their hands every 30 minutes and additionally as needed.  This portion of the bill adds section 113952 to the Health and Safety Code and will not expire.

4. Small Employer Family Leave Mediation Program

The new law also requires the Department of Fair Employment and Housing to create a small employer family leave mediation “pilot program.”  Under this program, the small employer (with between 5 and 19 employees) or the employee may request a mediation through the DFEH for all claims and “additional related claims.”  During the mediation, all statute of limitations for the employee would be tolled.  This portion of the law is repealed on January 1, 2024.

5. Remember Other Paid Leave Laws

Employers must be sure to educate themselves to ensure they are complying with other federal, state, and local paid and unpaid leave laws.  As I wrote about last week, there are many leave laws that could potentially apply to employers operating in California.