California passed sweeping legislation that imposes new reporting requirements in 2021 on employers regarding COVID-19 cases in the workplace.  The new law, AB 685, also provides California’s Division of Occupational Safety and Health (Cal-OSHA) expansive authority to close workplaces based on the threat of COVID-19.  Here are five issues California employers need to understand about the new requirements passed in AB 685:

1. AB 685 is effective of January 1, 2021

The Governor signed AB 685 on September 17, 2020.  It becomes effective on January 1, 2021, and expires on January 1, 2023.

2. Employer notice requirements for COVID-19 in the workplace

AB 685 also adds Labor Code section 6409.6 which requires employers to report certain instances of COVID-19 in the workplace.  The new law requires employers who receive a notice of potential exposure to COVID-19 to provide a written notice to other employees within one day of notice of potential exposure:

  • Provide a written notice to all employees and employers of subcontracted employees who were on the premises at the same time as the “qualifying individual” within the “infectious period” that they may have been exposed to COVID-19. “Infectious period” is not formally defined by the statute, but rather refers to the definition provided by the State Department of Public Health.  “Qualifying individual” is defined as any person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a license health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or “per inclusion in the COVID-19 statistics of a county.”
  • The notice must be in a form that is usually used to communicate with employees, and can be by personal delivery, email, or text message as long as the notice is reasonably believed to be received by the employee within one business day of delivery. The notice must be in both English and in the language understood by a majority of employees.
  • Provide employees who may have been exposed with information regarding COVID-19 related benefits available under federal, state, and local laws. This information would include workers compensation benefits, COVID-19-related leaves, company sick leave, state-mandated leave, supplemental sick leave, and antiretaliation and antidiscrimination protections.
  • Notify all employees of the disinfection and safety plan that the employer plans to implement and complete in accordance with the guidelines of the Centers for Disease Control.

Employers should start preparing a draft of this notice in order to be able to meet the one-day requirement to inform employees.  Employers are required under the new law to keep records of the written notices provided to employees for at least three years.

3. Employers must notify the local public health agency of “outbreaks”

If an employer has an “outbreak” in its workforce, within 48 hours it must notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation and worksite of “qualifying individuals.” An “outbreak” for AB 685 is currently defined as: “[a]t least three probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked in the setting, are from different households, and are not identified as close contacts of each other in any other case investigation.” (see https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/OutbreakDefinitionandReportingGuidance.aspx).

Again, “qualifying individual” is defined as any person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a license health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or “per inclusion in the COVID-19 statistics of a county.”  The employer must also continue to inform the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

4. Grants Cal-OSHA authority to close workplaces that constitute an “imminent hazard to employees”

AB 685 amends Labor Code section 6325 to permit Cal-OSHA to close workplaces that “constitute an imminent hazard to employees” due to COVID-19.  The closure of a workplace must be limited to the immediate area that the “imminent hazard exists,” and Cal-OSHA cannot prohibit entry to any areas that are outside of the hazard area.  Cal-OSHA must post a notice in a conspicuous place at the place of employment making this determination.  Entry must still be permitted for eliminating the dangerous condition.  AB 685 removes some of the notice provisions that Cal-OSHA usually must comply with before making a determination that a work environment constitutes an imminent hazard when dealing with COVID-19, so employers must be prepared to act immediately if Cal-OSHA designates a worksite or portion of a worksite as a hazard area due to COVID-19.

5. Useful State of California issued guidance for employers for dealing with COVID-19 in the workplace

Due to popular demand, my firm is replying our webinar we conducted recently discussing key California employment laws passed in this legislative session.  Attorneys from the firm discuss 5 general areas of new legislation facing California employers:

    • Coronavirus Bills
    • Leaves of Absence Bills
    • Wage and Hour Bills
    • Harassment/Discrimination/Retaliation Bills
    • Minimum wage increases in 2021 on state and local levels

If you would like to learn more and dive deeper into the new bills (some of which took effect immediately upon the Governor’s signature), join us for our recorded webinar happening next Friday (October 16, 2020 at 11 a.m. PT).  These topics will be critical for California employers to understand when planning for 2021.  Registration is here.

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Governor Newsom had a September 30, 2020 deadline to approve or veto any new laws for 2021.  Today, our team from Zaller Law hosted a webinar covering the major employment laws approved by the Governor and what these new laws mean for employers.  We will be hosting another webinar soon discussing some of the laws in more detail, so be sure to subscribe for notifications.  This Friday’s Five covers five of the new laws with the most impact on employers for the remainder of 2020 and into 2021:

1. AB 1867 – California Supplemental Paid Sick Leave

My previous article on AB 1867 is here. 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. The new law created obligations for employers to provide COVID-19 Supplemental Paid Sick Leave to non-food sector employees starting no later than September 19, 2020.

2. SB 1159 – Workers’ Compensation: COVID-19

  • Effective immediately! (Automatically repealed January 1, 2023)
  • Codifies Governor’s May 6, 2020, Executive Order N-62-20.
  • Applicable to employees who test positive during an “outbreak” at the employee’s “specific place of employment.”
  • Applicable to employers with five or more employees
  • Applies to all dates of injury on or after July 6, 2020
  • Employee may be awarded: Full hospital, surgical, and medical treatment; disability indemnity (only after exhausting any COVID-specific paid sick leave); and death benefits

Key Terms:

  • “Specific place of employment”: Building, store, facility, or agricultural field where an employee performs work at the employer’s direction. Does not include employee’s home.
  • “Outbreak”: Measured over 14 days at a specific place of employment
    • If 100 or fewer employees, four employees test positive .
    • If more than 100 employees, four percent of employees test positive.
    • If a public health department or OSHA orders SPE closed due to risk of infection with COVID-19.
  • “Test”: PCR Test or viral culture test of same or higher sensitivity/specificity. Does not include serological (antibody) test.

Presumption:

  • Employee’s COVID-19 illness or death is presumed to arise out of and in the course of the employment if employee tests positive within 14 days of performing labor or services at the place of employment.
  • Key limitation: during an outbreak.
  • Can be rebutted with evidence of employer safety measures and employee’s nonoccupational risks.

Employer Reporting Requirements:

  • Employer must report positive tests to claims administrator by email or fax within three business days, including:
  • Date of positive test (collection date)
  • Address of employee’s specific place of employment
  • Highest number of employees at SPE in 45-day preceding last day worked
  • Do not identify employee unless employee asserts work-related infection
  • Duty to report arises if employer knew or should have known of positive tests
  • Civil penalty up to $10,000 or failing to report information or intentionally submitting false or misleading information
  • Employers have until October 19 to report any positive tests occurring between July 6, 2020, and September 16, 2020

3. SB 1383 – California Family Leave Rights Act (CFRA) Expansion

  • Effective January 1, 2021
  • SB 1383 significantly expands CFRA, by extending its applicability to employers with 5 or more employees, compared to 50 or more employees currently.
  • The new law expands the family members whom an employee can take leave to include care of grandparents, grandchildren, siblings, domestic partners with a serious health condition, in addition to existing leave to care for a parent or spouse.
  • This law will have a monumental impact on small employers and will impact large employers who are already subject to CFRA.

Major Changes In The New CFRA Provisions Include:

  1. Changes the threshold requirement to employers with 5 or more employees across the entire State.
  2. Expands the definition of family member to include care for an adult child over 18 years of age, the child of a domestic partner and a grandparent, grandchild and sibling.
  3. Requires an employer of both parents of a child to grant up to 12 weeks of leave for each parent for birth, adoption, or foster care placement of a child.
  4. Eliminates the “key employee” provision under the current CFRA provisions.

Eligibility for CFRA Leave:

Employee must have worked for the employer for at least 12 months and worked at least 1,250 hours in the 12-month period prior to taking CFRA leave.

Amount of Leave:

Up to 12 weeks of unpaid leave in each 12-month period. Leave can be used in increments. This 12-week leave is in addition to other leaves mandated under California law, like Pregnancy Disability Leave, Workers Compensation, and California Paid Leave.

What The New CFRA Leave Requires:

  • The unpaid leave can be taken because of the employee’s own serious health condition, or to care for specified family members medical conditions or to care for a child.
  • The employee shall continue to receive health insurance benefits at the same level as if the employee had been continuously employed during the CFRA leave.
  • Employers must reinstate an employee on leave to the same job or comparable job to the extent that the employee would have remained in that position if they had been continuously employed during the CFRA leave.

Impacts Larger Employers Covered Under the Current Law:

  • Additional covered family members and expanded reasons for leave.
  • Threshold requirements of employing 50 or more employees within a 75-mile radius is stricken, so that larger employers with small worksites will be required to grant CFRA leave.
  • In some cases, CFRA may no longer be concurrent with leave taken under the FMLA, so there is the potential the employee qualifies for leave under both state and federal law.

4. AB 1947 – Employment Violation Complaints

  • Existing law prohibits discrimination or retaliation against employees who complains about labor code violations or other violations of law.
  • AB 1947 amends existing law to provide a longer time for employees to report complaints to DLSE extended from 6 months to one year.
  • Allows employee to recover attorney’s fees in court action alleging retaliation.

5. SB 973 – Employers Annual Report Pay Data

  • On or before March 31, 2021, and on or before March 31 each subsequent year, private employers with 100 or more employees and who are required to file an annual Employer Information Report (EEO-1) under federal law, must submit pay data report to the Department of Fair Employment and Housing (DFEH).
  • Reinstates by CA collection of “Component 2”-type pay data by race and gender that was halted on the federal level in the EEO-1.
  • Information required to be reported includes:
    1. number of employees by race, ethnicity, and sex across 10 categories of jobs,
    2. the number of employees by race, ethnicity, and sex whose annual earning fall within each of the pay bands used by the US Bureau of Labor Statistics in the Occupational Employment Statistics survey.

The City of San Diego announced on September 28, 2020, that the City’s minimum wage will increase to $14 per hour on January 1, 2021.  This in an increase from the minimum wage of $13 per hour applicable in 2020.  The City of San Diego’s Earned Sick Leave and Minimum Wage Ordinance,  San Diego Municipal Code (SDMC) Chapter 3, Article 9, Division 1 became effective on July 11, 2016.  The City’s law applies to employees who perform at least two (2) hours of work in one or more calendar weeks of the year within the geographic boundaries of San Diego.  The City has directed employers to the  Council District or the interactive geographic boundaries map to assist in determining if they are located within the City.  If a work location is not within the geographic boundaries of the City of San Diego, but within the County of San Diego, the California State minimum wage and earned sick leave laws apply.

Why should you attend my firm’s webinar, “New Employment Laws Facing California Employers in 2021” taking place next Friday, October 2, 2020? Here are five reasons:

  1. A lot has taken place in 2020. It is worth one hour of your time to begin to learn about the major employment legal developments in 2020.
  2. The Governor has until September 30, 2020 to sign any new legislation for 2021. We will cover the new significant laws enacted that will impact California employers in 2021.
  3. Gain insight into the major employment cases that will be decided in 2021 and how these may impact employers.
  4. Some legislation, such as AB 1867 that requires California employers with 500 or more employees to provide COVID-19 supplemental paid sick leave, signed by the Governor already took effect on September 19, 2020. Learn about this new law and its requirements on California employers.
  5. The best reason – it is free.  However, there are a limited number of registration spaces available through our webinar software, and currently this is the most demand we have had for any prior webinars. I recommend registering early.

Sorry for the short post this week, but we have been very busy this week helping clients navigate California’s new supplemental paid sick leave requirements enacted in AB 1867.  Hope to see you in the webinar next Friday (10/2/20).

September 30, 2020 is the deadline for Governor Newsom to sign into law all bills passed by the Legislature this year.  The Governor has not waited until the deadline to begin signing a few employment related bills into law already.  Yesterday, the Governor signed AB 685 and SB 1159 into law.  AB 685 requires employers to notify workers of potential exposure to COVID-19 and SB 1159 creates a presumption that a covered worker who contracted COVID-19 contracted the virus at work and it is work related illness for workers compensation purposes.

This Friday’s Five is a quick overview of about AB 685 and SB 1159, and information about my firm’s webinar reviewing key California employment laws signed by the Governor (and other employment law updates).  My Firm’s webinar will take place on Friday October 2, 2020 at 10 a.m. PDT (registration is here and more information below).

1. AB 685 – Notice to employees of potential COVID-19 exposure

AB 685 take effect on January 1, 2021 and will expire in two years on January 1, 2022.

If an employer receives a notice of potential exposure to COVID-19, the employer must within one day provide written notice to all employees and subcontracted employee who were on the premises at the same worksite within the “infectious period.”  The notice must contain information about what COVID-19 related benefits the employee is entitled to under federal, state, and local laws, and the employer’s disinfection and safety plan.  Employers are required to keep a copy of all notices provided to employees for three years.

2. AB 685 – Local Health Department notice requirements

Under the new law, ff the employer is notified of a number of COVID-19 cases that meet the definition of a COVID-19 outbreak as defined by the State Department of Public Health, the employer has 48 hours to notify the local public health agency.

3. SB 1159 – Workers’ Compensation COVID-19 Presumption

SB 1159 takes effect immediately (September 17, 2020) and expires on January 1, 2023. SB 1159 creates a rebuttable presumption that an employee contracted COVID-19 at work if they have tested positive or is diagnosed with COVID-19 within 14 days after a day that the employee worked at the employee’s place of employment.  The bill does set forth that the “place of employment” does not include an employee’s residence if they are working at home.

4. SB 1159 – Workers Comp Presumption – Covered Workers

SB 1159 sets forth specific types of workers that the law covers (such as active firefighting members, Department of Forestry and Fire Protection, peace officers, and fire and rescue service coordinators).  For other employees, the law applies if there is an “outbreak at the employee’s specific place of employment.”  An outbreak exists if:

  • For employers with 100 or fewer employees at a specific place of employment if 4 employees test positive for COVID-19
  • For employers with more than 100 employees at a specific place of employment if 4 percent of the number of employees who reported to the specific place of employment tested positive for COVID-19
  • If the specific place of employment is ordered closed by a local health department, State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent.

5.  Register for our webinar discussing the new employment facing California employers into 2021.

My firm is conducting a webinar on October 2, 2020  at 10 a.m. to review the critical new laws signed by the Governor (including more details about AB 685 and SB 1159), recap other COVID-19 employment legal requirements in place on the Federal, state, and local levels, and provide some other reminders about minimum wage increase and sexual harassment training requirements in 2021.

This webinar is essential for company executives and human resources personnel in learning what the employment landscape and employer obligations are for the remainder of 2020 and into 2021.  Reserve your seat early as the webinar has a limited number of registrants, and this event is likely to hit our maximum capacity (clients of the Firm will receive priority for attendance).

Click here to register.

[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.

Non-Food Sector Employers Must List Amount of Supplemental Paid Sick Leave on Pay Stubs

Covered non-food sector employers need to identify the amount of supplemental paid sick leave available each pay period on each paycheck stub (or separate writing given to the employees at the time of pay) starting the next full pay period after 9/19/20.  Employers must also maintain these records for at least three years.

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.

As employees are just beginning to return to work, or employers are making plans to reopen pursuant to California’s “Blueprint for a Safer Economy,” it is a good time to review the various paid sick leave laws that were implemented during the COVID-19 epidemic, as well as the paid sick leave laws that were already in place prior to COVID-19 under California and local laws.  Here is a review of five paid sick leave laws that could apply to employers in the Los Angeles and Southern California area:

1. Los Angeles City – COVID-19 Supplemental Paid Sick Leave

April 7, 2020, Mayor Garcetti signed the COVID-19 Supplemental Paid Sick Leave law.  The law is effective from April 7, 2020 and will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

The final Order can be viewed here, and sets forth the following:

Covered employees:

An employee who has been employed with the same employer from February 3, 2020 through March 4, 2020, is entitled to supplemental paid sick leave.  The employee must perform any work within the geographic boundaries of the City for the employer.

Covered employers:

Applies to an employer that has either (i) 500 or more employees within the City of Los Angeles, or (ii) 2,000 or more employees within the United States.

Amount of Leave:

If an employee is unable to work or telework, they are entitled to leave as follows:

  1. An employee who works at least 40 hours per week or is classified as a full-time employee by the employer shall receive 80 hours of supplemental paid sick leave. Supplemental paid sick leave shall be calculated based on an employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.
  2. An employee who works less than 40 hours per week and is not classified as a full-time employee by the employer shall receive supplemental paid sick leave in an amount no greater than the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.

Cap on payments:

The amount paid to an employee is limited to $511 per day and $5,110 in the aggregate.  Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

Qualifying Reasons for Leave:

Supplemental paid sick leave upon the oral or written request of an Employee if:

  1. The employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self quarantine to prevent the spread of COVID-19;
  2. The Employee takes time off work because the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. The employee takes time off work because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
  4. The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation.  This provision is only applicable to an Employee who is unable to secure a reasonable alternative caregiver.

An Employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

Employer Offset:

This requirement will be reduced for every hour an employer provides paid leave to an employee (except for previously accrued hours) on or after March 4, 2020 for any reasons set forth above or in response to an employee’s inability to work due to COVID-19.

Businesses Exempt From the Supplemental Paid Sick Leave:

  1. Emergency and health services personnel.
  2. Critical parcel delivery employees.
  3. Employers who have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
  4. New businesses that started in the City or relocated to the City on or after September 4, 2019 through March 4, 2020.
  5. Government employees.
  6. Closed businesses and organizations – Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave shall be exempt from the Order.
2. Los Angeles County COVID-19 Worker Protection Ordinance

On April 28, 2020, the Los Angeles County Board of Supervisors passed the Los Angeles County COVID-19 Worker Protection Ordinance.   Click here to view the Ordinance.

Effective Time Period:

March 31, 2020 to December 31, 2020 (unless it is extended by the Board of Supervisors)

Covered Employers:

Applies to employers operating in the unincorporated areas of the County of Los Angeles who have 500 or more employees nationally.

The ordinance applies to an individual who performed any work within the County for the employer.

Excluded Employees:

The Ordinance excludes food sector workers who are covered in California Governor’s Executive Order N-51-20 (see below).  Employers may also exclude emergency responders or health care providers (as defined by the Ordinance) from being eligible for paid sick leave.

Amount of Paid Sick Leave:

Employees who work at least forty hours per week or is classified as a full-time employee is entitled to 80 hours of supplemental paid sick leave.  The amount of pay is calculated on the employee’s highest average two week pay during the period of January 1, 2020 to April 28, 2020.

Employees who work less than 40 hours per week and is not classified as a full-time employee is entitled to paid sick leave calculated at the employee’s average two week pay over the period of January 1, 2020 to April 28, 2020.

The amount of paid sick leave is capped at $511 per day and $5,110 in the aggregate.  Paid sick leave under the Ordinance is in addition to any paid sick leave available to employees under Labor Code 246.  Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

Covered Reasons For Leave:

Employers must provide paid sick leave to employees under the Ordinance at the written request (including, but not limited to, email and text) of an employee if the employee cannot work because:

  1. A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee is subject to a federal, State, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system);
  3. The employee needs to care for a family member who is subject to a federal, State, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
  4. The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider ceases operations in response to a public health or other public official’s recommendation.

Employers may require a doctor’s note or other documentation confirming that the employee is entitled to sick leave under one of these qualifying reasons.

3. California Food Service Workers Supplemental Paid Sick Leave – Executive Order N-51-20

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which provides new paid sick leave to certain food service workers. Citing a need to fill a “gap” left by the federal Families First Coronavirus Response Act, which applies solely to employers with fewer than 500 employees, this  Executive Order provides up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to defined food sector workers.

Covered Employers:

Executive Order N-51-20 applies to employers with 500 or more employees in the United States, including full-time and part-time workers but not including independent contractors. Employees on leave of any kind are counted, but employees furloughed or laid off are not counted unless and until they are reemployed.

The Executive Order expressly applies to any “Delivery Network Company” (companies that use a website or mobile app to enable local delivery of products/food from third-party merchants; think Postmates or GrubHub) and any “Transportation Network Company” (companies that provide transportation services using online apps/platforms that connect passengers with drivers using a personal vehicle; think Uber or Lyft) that employs 500 or more employees.

As with the FFCRA and FMLA, common employees of joint or integrated employers must be counted together.

There is one exception: if, as of April 16, 2020, the employer already provides a “supplemental benefit” such as paid leave that provides the same or greater benefit provided by this Executive Order, then the employer does not have to provide the COVID-19 Supplemental Paid Sick Leave.

Employees Covered:

The Executive Order applies to “Food Sector Workers,” which it defines as any person who satisfies one of the following criteria:

  1. The person works in an industry or occupation covered by Wage Orders 3 (Canning, Freezing, and Preserving Industry), 8 (Industries Handling Products After Harvest), 13 (Industries Preparing Agricultural Products for Market, on the Farm), or 14 (Agricultural Occupations).
  2. The person works for a food facility,” which means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, whether consumed on or off premises, as well as storage facilities for food-related utensils, equipment, and materials.
  3. The person delivers food from a food facility.

Food Service Workers only include those persons who are essential workers under the Governor’s stay-at-home order, or any other statewide stay-at-home order.  Employees who work from home do not qualify for the supplemental paid sick leave.

The Labor Commissioner’s Office, which enforces the Executive Order, has interpreted it to specifically encompass “grocery workers, restaurant or fast food workers, workers at warehouses where food is stored, and workers who pick-up or deliver any food items.”

Covered Reasons For Leave:

The worker must be unable to work due to one of three reasons:

  1. The Food Service 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; or
  3. The Food Sector Worker is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Amount of Paid Sick Leave:

The worker is entitled to 80 hours of COVID-19 Supplemental Paid Sick Leave if either (1) the employer considers the worker to work “full-time”; or (2) the worker worked or was scheduled to work an average of at least 40 hours per week in the two weeks preceding the start of the leave.

If the worker does not meet either of the above “full-time” requirements, then the amount of leave depends on the worker’s schedule.  If the worker has a “normal weekly schedule,” the worker is entitled to leave equal to the total number of hours normally scheduled to work over two weeks.  If the worker has a “variable schedule,” the worker is entitled to fourteen times the average number of daily hours worked in the preceding six months.

The food service worker is paid at the regular rate of pay for the worker’s last pay period.  If the applicable state or local minimum wage is higher, then the worker gets that minimum wage.  Regardless, pay is capped at per worker at $511 per day and $5,110 in the aggregate.

The leave provided by the Executive Order is in addition to any paid sick leave available under Labor Code section 246 (see below for further details).

Effective Dates:

The Executive Order was signed on April 16, 2020.  The food service worker is entitled to leave upon oral or written request by the worker to the employer.  The worker, not the employer, may decide how many hours of leave to use, up to the total amount available.  The employer may not require the worker to use any other paid or unpaid leave, including vacation or other paid sick leave, prior to using the supplemental paid sick leave.

The Executive Order remains in effect during the pendency of any statewide stay-at-home order, but a worker taking leave at the time such an order expires is permitted to continue to take the full amount of leave.

Required Poster:

The Labor Commissioner published a poster that eligible employers must post related to this Executive Order.  For food service workers that do not frequent a workplace, the employer may email the poster to the worker.

Requirement To Wash Hands:

The Executive Order provides that food facilities must permit employees to wash their hands “every 30 minutes and additionally as needed.”

4. Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) was passed by the Senate and signed by President Trump on March 19, 2020.  The Act provides for two paid leaves that employers across the United States must provide to employees in response to the coronavirus epidemic.  The Act is effective in 15 days and applies to employers with 1 to 499 employees – yes, you read that right, large employers with 500 or more employees do not have to comply with this law.  It expires on December 31, 2020.  The Act provides for two sources of paid leave: Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Emergency Paid Sick Leave Act (EPSLA):

Covered Employees: All employees.

Covered Employers: Employers with fewer than 500 employees.

Amount of Leave:

  • Full time employees: 80 hours of paid leave
    • Calculated at their regular rate of pay (as calculated by the FLSA) or the minimum wage, whichever is greater.
  • Part-time employees: Average number of hours worked over a two-week period.
    • If employee works a variable schedule, it is the average number of hours they worked per day over the previous six months. If the employee has not worked this long, it is the reasonable expectation of the employee at the time of hire of the average number of hours per day the employee would normally be scheduled.

The Emergency Paid Sick Leave Act sets forth six covered reasons qualifying for paid sick leave, and a corresponding rates of pay for the employee and a cap on payments to the employees depending on the reason for leave:

Covered Reason For Leave Rate of Pay Cap on Payments
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis. The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2). Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate

Employers cannot require employees to use any other leave prior to using the Emergency Paid Sick Leave.

Notice requirements: Employers must post a notice in conspicuous places on the premises of a notice to be prepared by the Secretary of Labor.  The Secretary of Labor has 7 days after the enactment of the Act to make the notice publicly available.

The Act cannot not diminish the rights or benefits of employees provided under any other Federal, State, or local law, collective bargaining agreement, or existing employer policy.

Employers are not required to pay out any unused Emergency Paid Sick Leave at the end of employment.

Emergency Family and Medical Leave Expansion Act:

Eligible employees: An employee who has been employed for at least 30 calendar days.

Covered employers: An employer with fewer than 500 employees.

Qualified reasons for paid FMLA leave: When the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (with respect to a COVID-19 declared by a Federal, State, or local authority), the employee may take up to 12 weeks of leave.

Amount of paid leave:

  • First 10 days may be unpaid (but employee may use other paid leaves during this time)
  • Paid at no less than two-thirds of the employee’s regular rate of pay (as determined by the FLSA) and the number of hours the employee would normally be scheduled to work for up to 12 weeks.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.

Reinstatement rights:  Employees are entitled to reinstatement to the same position or an equivalent position, unless the employer employs fewer than 25 employees.  In that case, the employer must make reasonable efforts to provide the employee with a position or an equivalent position for 1 year after the “public health emergency concludes” or 12 weeks after commencement of the leave, whichever is earlier.

Exclusions: The Secretary of Labor has authority to issue regulations for good cause to exclude certain health care providers and emergency responders, and to exempt small businesses with few than 50 employees if requirements would “jeopardize the viability of the business as a going concern.”

The Act provides payroll tax credits granted to employers to offset the costs associated with these employer provided mandates.  This is a concern for many business owners, especially restaurant owners, who have been forced to close or substantially reduce their operations to take-out only, and now must find extra money for these payments and wait for a tax credit.

Required Poster:

The Department of Labor published the required posters employers will need to provide to employees under the Families First Coronavirus Response Act:

5. Other Paid Sick Leave Requirements Already In Place Prior to COVID-19

California employers still must comply with California’s Healthy Workplaces, Healthy Families Act of 2014 and any other local city or county paid sick leave laws that have been in place prior to COVID-19.  All California employer must comply with the California’s Healthy Workplaces, Healthy Families Act of 2014.

Some other examples of other local city or county paid sick leave laws in Southern California include:

  1. Los Angeles City’s paid sick leave requirements
  2. Los Angeles County’s paid sick leave requirements
  3. Santa Monica
  4. San Diego

More information on these local paid sick leave laws for Southern California can be read here.

The Golden State continues to be submerged in a rather bizarre reality. State and local government officials continue to juggle between safety and health concerns in one hand, and economic turmoil on the other. With no concise timeline as to when will business may go back to “normal” operations, employers must continue to comply with the labyrinth of federal, state and local rules regulations addressing COVID-19 issues. Unsurprisingly, administrative agencies have begun turning their resources towards enforcement of these rules and regulation. The latest agency to jump into this bandwagon is the California Department of Industrial Relations Division of Occupational Safety & Health (DOSH), or Cal/OSHA.

As an enforcement mechanism, Cal/OSHA may cite employers or businesses who fail to comply with health and safety requirements, particularly as they relate to COVID-19. Cal/OSHA has certainly deployed the “stick” method for employer compliance, as it issued citations to 11 different employers, equating to a total of roughly $116,775. These citations ranged from $2,025 to $51,190.

But why were these businesses cited? These particular businesses were cited for failing to protect workers from exposure to COVID-19, as they did not take steps to update their workplace safety plans to properly address hazards related to the virus. Among the reasons for the citations included: the businesses’ failure to ensure physical distancing, failing to install Plexiglas or other barriers between workers, failure to implement procedures to screen employees and visitors upon arrival to the facility, and failure to take appropriate measures for employees exhibiting COVID-19 symptoms at the business. The message is clear: employers should have already developed methods, strategies, and protocols to ensure compliance with these requirements.

Although these businesses are in the food processing, meatpacking, health care, agriculture and retail industries, this serves as a reminder to all businesses in any industry to comply with Cal/OSHA requirements. Indeed, Cal/OSHA Chief, Doug Parker, clearly stated that:

“These are industries where workers have been disproportionately affected, and these citations are the first of many to be issued in the coming weeks and months.”


Requirements Under Cal/OSHA

The overarching rule is that employers have a duty to provide work and workplaces that are safe and healthful. Further, Cal/OSHA’s regulations require protection for workers exposed to airborne infectious diseases such as COVID-19.

In particular, Cal/OSHA requires employers:

  • To implement an Injury and Illness Prevention Program (“IIPP”). The purpose of an IIPP is to protect employees from workplace hazards, including COVID-19. The IIPP should clearly establish relevant and applicable infection prevention measures, such as encouraging sick employees to stay home, encourage teleworking, and to practice social distancing. For a more detailed discussion of the requirements, see our previous post here.
  • Provide employee training. Employers must provide training to their employees with respect to COVID-19 generally, the ways in which COVID-19 may be spread by a person, proper use of cloth face coverings, the proper method for washing hands, and cleaning and sanitizing.
  • Provide personal protective equipment (PPE), if applicable. Employers must conduct a “hazard assessment” to determine if any PPE is needed to protect employees from hazards present – or likely to be present – in the workplace. Employers should review their local health department rules, requirements and regulations to ensure compliance. For example, restaurants doing businesses with Los Angeles County must provide employees with face masks and face shields.

Cal/OSHA has issued industry-specific guidance and guidelines on how to protect workers from COVID-19, and can be accessed here.

Employers should use this as an opportunity to review their protocols and ensure compliance not only with local regulations, but with safe and healthy requirements under Cal/OSHA.