On September 9, 2020, California Governor Gavin Newsom signed into law Assembly Bill 1867 (AB 1867), which requires private entities with 500 or more employees to provide up to 80 hours of COVID-19-related supplemental paid sick leave (CSPSL) to their California employees.
Who Is Affected by AB 1867?
AB 1867 applies to “hiring entities,” defined as “…any kind of private entity whatsoever…” with 500 or more employees in the United States. The term “hiring entities” also includes public or private health care provider employees and first responders, whose employers elected to exclude them from emergency paid sick leave requirements under the Families First Coronavirus Response Act (FFCRA).
Why Was AB 1867 Passed?
AB 1867 provides COVID-19-related paid sick leave to employees not previously covered under the FFCRA and Executive Order N-51-20 (EO N-51-20). As discussed in our prior Alert, EO N-51-20 was signed by Governor Newsom on April 16, 2020, and provided CSPSL to a specific category of employees defined as “Food Sector Workers.” With the enactment of AB 1867, EO N-51-20 has been codified into law (with minor changes discussed below), expanded to non-critical infrastructure Food Sector Workers, and made retroactive to the date it was signed. In addition, CSPSL has been expanded to all “hiring entities” as defined above. AB 1867 codifies these new provisions in the California Labor Code as sections 248 and 248.1, respectively.
In What Circumstances is an Employee Entitled to Use CSPSL?
AB 1867 states that an employee who is required to leave home to perform work is entitled to CSPSL if the employee is unable to work due to the following:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- the employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.
How Much CSPSL Is an Employee Owed?
The total number of CSPSL hours to which an employee is entitled depends on the employee’s regular work schedule.
- Full Time Employees: An employee is entitled to 80 hours of CSPSL if the employer considers the employee “full time,” or the employee worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the employee took leave.
- Part Time Employees with Fixed Schedules: Employees who are not considered “full time,” and work normal or fixed weekly schedules will receive an amount of CSPSL equal to the total number of hours they are normally scheduled to work for the employer over two weeks.
- Part Time Employees with Varied Schedules: Employees who work irregular or a variable number of hours receive 14 times the average number of hours they worked each day for the employer in the six months preceding the date they took leave. If the employee has worked for the employer for less than six months, the total length of their employment is used, unless the employee has been employed for 14 days or less. In that case, the total number of hours worked is used.
- Active Firefighters: AB 1867 specifically addresses active firefighters. Active firefighters that are scheduled to work more than 80 hours for their employer in the two weeks preceding the date they took leave are entitled to an amount of CSPSL equal to the total number of hours they were scheduled to work for the employer in those two preceding weeks.
What is the Rate of Pay an Employee Receives?
Employees utilizing CSPSL must be paid at an hourly rate equal to the highest of the following:
- the employee’s regular rate of pay for the last pay period (including amounts pursuant to any applicable collective bargaining agreement);
- the state minimum wage; or
- the local minimum wage.
AB 1867, like the FFCRA, caps the total amount employers are required to pay for an employee’s CSPSL. Employers are not required to pay more than $511 per day and $5,110 in the aggregate to any employee for CSPSL.
Payment of CSPSL to the employee must be made no later than the payday for the next regular payroll period after the leave was taken.
When Must an Employer Make CSPSL Available to an Employee?
An employer must make CSPSL available for immediate use by the employee upon oral or written request.
Can an Employer Dictate How CSPSL is Used?
No. The employee determines how many hours of CSPSL to use, up to the total amount to which the employee is entitled under the law. Furthermore, AB 1867 prohibits an employer from requiring the employee to use any other paid or unpaid leave, vacation time, or PTO before, or in lieu of, using CSPSL.
When Does AB 1867 Take Effect?
For all “hiring entities,” (all private entity non-food sector workers, since food sector workers were already granted CSPSL pursuant to EO N-51-20), AB 1867 will take effect “not later than 10 days” after the enactment of the law. AB 1867 became law after Governor Newsom signed it on September 9, 2020. This means CSPSL requirements take effect no later than September 19, 2020.
How Long Does an Employer Need to Offer CSPSL?
AB 1867’s requirements to provide CSPSL to covered employees expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.
What Happens if an Employer Already Provided COVID-19 Related Paid Sick Leave?
Employers who already provided supplemental paid leave for the reasons related to AB 1867’s covered reasons (circumstances related to COVID-19, as discussed above), may count those hours toward the required amount of CSPSL hours under AB 1867. However, compensation for any qualifying supplemental paid leave provided to the employee must have been greater than, or equal to, the amount of compensation the employee would have received under AB 1867. If the employer failed to pay the guaranteed rate under AB 1867, the law allows the employer to make retroactive supplemental payments to the employee to make up for this shortfall, rather than provide additional leave time.
Are There Other Requirements of Which to be Aware?
Yes. AB 1867 incorporates existing law into its notice, enforcement, and remedial provisions. Employers should adopt practices consistent with notice requirements found under California’s Healthy Workplaces, Healthy Families Act of 2014 (HWHFA), which include displaying posted notice of information relating to employee paid sick days.
AB 1867 requires the California Labor Commissioner to make available a model notice to provide to workers by September 16, 2020. For employees who work remotely, or do not frequent the workplace, the notice may be provided electronically via email.
Furthermore, “hiring entity” employers, but not employers of “Food Sector Workers” under EO N-51-20, must include CSPSL balances on their employees’ paystubs, or in a separate writing, in order to stay compliant with AB 1867. See Cal. Lab. Code § 248.1(d)(1)(A), which incorporates by reference Cal. Lab. Code §246(i). Based on AB 1867’s compliance date, “hiring entity” employers should act quickly to incorporate these revised wage statement obligations.
Are There Penalties for Non-Compliance with AB 1867?
Yes, employers can face civil penalties for violations of AB 1867. With respect to penalties, if paid sick days were unlawfully withheld, the dollar amount is measured by the paid sick days withheld from the employee multiplied by three, or $250, whichever amount is greater, but may not exceed an aggregate civil penalty of $4,000.
If a violation occurs that results in other harm to the employee, like discharge of employment, the penalty shall include a sum of $50 for each day or portion thereof that the violation occurred or continued, not to exceed an aggregate civil penalty of $4,000.
In addition, the Labor Commissioner may bring a civil action against any employer on behalf of the aggrieved employee for violating AB 1867. The relief available includes: reinstatement, back pay, payment of leave withheld, payment of an additional sums as liquidated damages, the penalties listed above, injunctive relief, reasonable attorney’s fees and costs, interest on all amounts due, and other remedies that may be provided by law.
What Are Some Other Aspects of AB 1867?
- Mandatory Handwashing Requirements For “Food Sector Workers”: “Food Sector Workers” must be allowed to wash their hands every 30 minutes under AB 1867. This requirement has been codified as a new provision to California Health and Safe Code – Section 113963.
- Mediation Pilot Program for Small Employers: AB 1867 also includes a small employer family leave mediation pilot program (for employers with 5 – 19 employees) which is designed to assist in the resolution of claims relating to non-compliance with expanded family and medical leave. However, this provision will only become operative if Senate Bill 1383 is enacted and takes effect on or before January 1, 2021.
If you have any questions regarding this Alert, please contact the authors, David L. Cheng, partner in our Los Angeles office at dcheng@fordharrison.com, and Justin L. Clark, senior associate in our San Francisco Bay Area office at jclark@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.