Keenan Briefings

Briefings

AB 1867: Bill Establishes Supplemental COVID-19 Leave Obligations for Certain Employers

September 22, 2020

On September 9, 2020, Governor Newsom signed into law AB 1867, establishing supplemental COVID-19 leave obligations for certain large employers as well as employers of health care, public safety and food service workers in California. This Briefing will summarize the new law, as well as guidance that was published by the California Department of Industrial Relations after signing.

Background

Earlier this year, Congress passed the Families First Coronavirus Response Act (FFCRA), which put in place an emergency paid sick leave right (EPSL) for certain workers as well as a temporary expansion of family leave rights (EFMLA). Both the paid sick leave and family leave provisions apply to private employers with fewer than 500 employees and public employers regardless of size. Under regulations promulgated by the U.S. Department of Labor, health care providers and emergency responders may be denied FFCRA leave.

Further details on the FFCRA leave provisions can be found at the Keenan Briefings and blog post found at the links below.

AB 1867 was enacted in part to fill in some of the “gaps” left by the federal law.

Food Service Workers

The law establishes a supplemental paid sick leave obligation for food service workers at hiring entities with 500 or more employees. A “food service worker” covered by the legislation is one who works for a private business (as opposed to a public agency) and satisfies one of the following criteria:

  1. Works in one of the industries or occupations defined in Industrial Welfare Commission ("IWC") Wage Order 3-2001 § 2(B) (the canning, freezing, and preserving industry); IWC Wage Order 8-2001 § 2(H) (industries processing agricultural products after harvest); IWC Wage Order 13-2001 § 2(H) (facilities on a farm that prepare products for market); or IWC Wage Order 14-2001 § 2(D) (general agricultural occupations)
  2. Works for a business that runs a food facility, which includes grocery stores, fast-food restaurants, and distribution centers
  3. Delivers food from a food facility for or through a hiring entity

Cafeteria workers employed by private companies that employ 500 or more people would be covered by this paid leave obligation.

Large Employers, Public Safety and Health Workers

The law also establishes the COVID-19 Supplemental Paid Sick Leave (SPSL) program for covered workers who leave their place of residence to perform work and are either:

  • Employed by a hiring entity that has 500 or more employees in the United States (using the same counting criteria as that used to count employees under the FFCRA), or
  • Employed as a health care provider or emergency responder employed by a hiring entity that has elected to exclude such employees from EPSL under the FFCRA.

The law specifies that the employer shall provide SPSL to covered workers that are unable to work because the worker is:

  • Subject to a federal, state or local quarantine or isolation order related to COVID-19,
  • Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19, or
  • Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Note that this is somewhat different from the qualifying conditions for EPSL under FFCRA, which does not require paid leave for employees prohibited from working by the employer due to health concerns. And unlike EPSL, SPSL does not apply to workers who are caring for a quarantined individual or child whose school or place of child care is closed.

The law requires an employer to provide 80 hours of SPSL if the worker is considered full-time, or if the worker worked or was scheduled to work an average of at least 40 hours per week in the two weeks prior to taking leave. For an active duty firefighter who was scheduled to work more than 80 hours in the two preceding weeks, the law requires the employer to provide the same amount of SPSL hours the firefighter was scheduled to work. Therefore, for an active-duty firefighter, an employer may be obligated to provide more than 80 hours of SPSL leave.

For part-time workers with a normal weekly schedule, the leave entitlement would equal the total number of hours the worker is normally scheduled to work over two weeks. For part-time workers with variable schedules, the leave entitlement would equal fourteen times the average number of hours the worker worked each day over six months (or the number of months worked if fewer than six months) preceding the leave. If an employee has worked for 14 days or fewer, the leave entitlement is the total number of hours worked.

Regardless of the number of hours of SPSL, that entitlement is in addition to any paid sick leave that may be available to the worker under California’s Healthy Workplaces, Healthy Families Act of 2014 (Labor Code 246). As with leaves under EPSLA, an employee taking a SPSL is to be compensated at their regular rate of pay, up to $511 per day and $5,110 in the aggregate.

Employers that had provided covered workers with comparable paid leave benefits by contractual agreement can substitute those benefits for SPSL. If comparable time was provided without pay, an employer may retroactively provide for such compensation now in order to satisfy both the leave and pay obligations of SPSL.

Finally, under SPSL, employers are required to provide employees with written notice of the amount of paid sick leave, or paid time off leave an employer provides in lieu of sick leave, either on the employee’s itemized wage statement or in a separate written document provided on the designated pay date with the employee’s payment of wages. For employers that provide unlimited paid sick leave, or unlimited paid time off to an employee, the employer may satisfy this requirement by indicating on the employee’s itemized wage statement “unlimited.” Both the FFCRA leave provisions and the AB 1867 leave provisions are in effect through December 31, 2020. The bill measure was enacted as “urgency legislation,” which means that it becomes effective upon signing, but it also notes that the paid sick leave obligation must take effect no later than ten days after enactment.Therefore, the paid sick leave obligations established by the law will become effective as of September 19, 2020. The leave obligations will expire on January 1, 2021.

Further Resources

The DIR has published FAQ guidance which can be found at: https://www.dir.ca.gov/dlse/FAQ-for-PSL.html

Additionally, the Division of Labor Standards Enforcement (DLSE) has published a California Paid Leave comparison chart, which can be viewed at the link below:

https://www.dir.ca.gov/dlse/Comparison-COVID-19-Paid-Leave.html

Finally, the Division of Labor Standards Enforcement has issued updated workplace posters for the SPSL. They can be found at the following links:


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.