As 2020 ends, this Friday’s Five focuses on five steps employers can take now to prepare for 2021:

1. Update employee handbooks to comply with SB 1383 – California Family Rights Act (CFRA) now applies to employers with 5 or more employees.

There has been overhaul of the California Family Rights Act (CFRA) which will have a monumental impact on many employers throughout the state. The new law requires employers with as few as five employees to provide up to 12 weeks of unpaid job protected leave during any 12-month period for certain covered reasons.  In addition, the definition of family members covered under the law has also been expanded so that it no longer just includes a spouse, a parent or a child, but employees can take leave to care for grandparents, grandchildren, siblings, or  domestic partners with a serious health condition.  Smaller employers will need to develop a CFRA policy to comply with the new requirements, and larger employers will need to update their leave policies to address the other changes (such as the expanded definition of family member, elimination of key employee provisions, among other changes).

2. Update employee handbooks to comply with AB 2017 – Kin Care leave under Labor Code section 233.

This new law provides that the designation of the sick leave taken under Labor Code section 233 is at the sole discretion of the employee.  Therefore, the employer may not designate sick leave as Kin Care leave by itself in order to quickly deplete the Kin Care leave available. Any Kin Care leave policies and related policies should be updated accordingly.

3. Update employee handbooks to comply with AB 2992 – leave policies for victim of domestic violence, sexual assault, or stalking.

AB 2992 expands the right to take time off work under Labor Code section 230.  The new law permits employees to take time off if they are victims “of a crime that caused physical injury or that caused mental injury and a threat of physical injury” or for anyone “whose immediate family member is deceased as the direct result of a crime.”  Employers must update any relevant crime victim leave policies to comply with the new requirements.

4. Exempt employees – review salary requirements.

Employers need to review the base salary for all exempt employees to ensure the employees meet the salary required to be exempt.  To be exempt from the requirement of having to pay overtime to the employee, the employee must perform specified duties in a particular manner and be paid “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” (Lab. Code, § 515, subd. (a).)  For more information about the salary basis test for exempt employees, see my previous article here.

With the increase in the state minimum wage on January 1, 2021, the equivalent of two times the minimum wage of $13 per hour for small employers (25 employees or less) equals $54,080 per year, and two times the minimum of $14 per hour for large employers (26 employees or more) equals $58,240 per year to qualify for the white collar exemptions.

It is important to note that the salary basis test is set according to the California state minimum wage, not the applicable minimum wage that may apply in the various local city and counties in California.

5. Update severance agreements to ensure they comply with AB 749 and AB 2143.

AB 749 prohibits and invalidates any provisions in settlement agreements entered into on or after January 1, 2020 that prevent workers from obtaining future employment with the settling employer or its affiliated companies under certain circumstances.  AB 2143, passed in 2020, provides an exception to this ban, if the employer documented in good fair, prior to a claim, that a person engaged in sexual harassment, sexual assault, or criminal conduct.

Employers only have to read the following paragraph from JoeBiden.com to get an overall sense of what employment legal changes are likely under a potential Biden administration:

Yet employers steal about $15 billion a year from working people just by paying workers less than the minimum wage. On top of that, workers experience huge losses in salary caused by other forms of wage theft, like employers not paying overtime, forcing off-the-clock work, and misclassifying workers. At the same time, these companies are raking in billions of dollars in profits and paying CEOs tens and hundreds of millions of dollars.

Here are five employment proposals that would dramatically change the legal landscape facing employers across the country that would likely be enacted under a Biden administration:

1. Implement a $15 per hour national minimum wage

Biden will raise the federal minimum wage to $15 per hour and likely eliminate the tip credit.

2. Ban mandatory individual arbitration agreements

JoeBiden.com sets forth that “Biden will enact legislation to ban employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their right to class action lawsuits or collective litigation.”

Similar attempts to prohibit arbitration agreements have occurred in California.  In October 2019, Governor Newsom signed AB 51, which attempted to make it an unlawful employment practice for an employer to require employees or applicants to “waive any right, forum, or procedure for a violation of” the California Fair Employment and Housing Act (FEHA) or the Labor Code. In other words, employers could no longer force employees to sign arbitration agreements.  AB 51 was challenged in court by the U.S. Chamber of Commerce on the grounds that AB 51 was preempted by the Federal Arbitration Act.  In the case, Chamber of Commerce of the USA, et al. v. Becerra, et al., the judge issued a preliminary injunction blocking the state’s enforcement of AB 51, but the case is still being litigated in the Ninth Circuit.

More information about arbitration agreements can be found here.

3. Adopt the ABC test for independent contractors based on California’s model for the county

Biden promises that as president he would “work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws.”  The ABC test would be modeled after California’s ABC test set forth in AB 5, which was updated by AB 2257 in September 2020.  California’s ABC test makes it much more difficult for employers to classify workers as independent contractors.  As evident in the exclusions set forth in AB 2257, many industries and professionals in California have asked to be excluded from the ABC test, and ride-sharing companies, such as Uber and Lyft, are spending hundreds of millions of dollars to place Proposition 22 before the California voters this November to exempt the companies from the law.  Implementing the ABC test across the county would likely be a death blow to gig-economy companies, or at the minimum force the companies to dramatically change their business models.

4. Empower unions

A Biden administration would bring sweeping changes to the National Labor Relations Act (NLRA) and potentially would pass portions of the Protecting the Right to Organize Act (PRO Act).  He supports instituting financial penalties against companies that interfere with organizing efforts, which would include personal liability for company executives (and potential criminal liability for intentional conduct).  Biden also proposes banning state right-to-work laws and would require employees to pay union dues even if they are not part of a union.  Biden also wants to eliminate secret ballot voting for unions and would implement the “card check” process under which votes would be public.

5. Increase employment investigations

Biden would also increase employment oversight through various governmental agencies.  His administration would direct the Department of Labor to work with the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission, the Internal Revenue Service, the Justice Department, and state labor agencies to “aggressively pursue employers who violate labor laws.”  This initiative would also include an increase in the number of investigators in these federal agencies.

More information about Joe Biden’s employment initiatives can be found on his campaign website here: https://joebiden.com/empowerworkers/#

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, 2023.

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.