California Mandates COVID-19 Supplemental Paid Sick Leave for Employers Not Covered by the FFCRA

By Tiffanny Brosnan and Anne E. Dwyer 

Large employers in California must now comply with a California version of the federal Families First COVID Response Act (“FFCRA”). On September 10, 2020, the California legislature passed Assembly Bill No. 1867 requiring employers with 500 or more employees and health care providers to provide 80 hours of supplemental paid sick leave to employees who miss work for a qualifying COVID-19 related reason. This new law provides COVID-19 related supplemental paid sick leave to employees who are not covered by the emergency paid sick leave requirements under the FFCRA.

Assembly Bill No. 1867, in part, establishes two new California Labor Code sections: Labor Code section 248, which provides supplemental paid sick leave for “food sector workers,” and Labor Code section 248.1, which provides supplemental paid sick leave for other “covered workers”. Food sector workers include any person who works for, or delivers food for, a company that has 500 or more employees and (1) is in the agriculture, canning, freezing and preserving industries or handles food after harvesting, or (2) operates a food facility (which includes any business that provides foods for human consumption). Covered workers include any person employed by an employer that has 500 or more employees in the United States or a person employed as a health care provider or emergency responder by an entity that elected to exclude such employees from the emergency paid sick leave under the FFCRA. While food sector workers had previously been entitled to supplemental paid sick leave under Governor Newsom’s Executive Order N-51-20, Assembly Bill No. 1867 expands those benefits to workers outside of the food sector.

Now, both food sector workers and covered workers must be provided with supplemental paid sick leave as follows:

Amount of Supplemental Paid Sick Leave

• Full-time workers are entitled to 80 hours of supplemental paid sick leave.
• Part-time workers are entitled to pro-rated supplemental paid sick leave based on the hours they are normally scheduled to work over a two-week period or, if they work a variable number of hours, 14 times the average number of hours they work each day in the preceding six months.
• There are special provisions for firefighters and covered workers who have been employed for 14 days or fewer. 

Rate of Pay for Supplemental Paid Sick Leave

• Supplemental paid sick leave must be paid at the higher of the worker’s regular rate of pay for the last pay period or the state or local minimum wage. However, an employer is not required to pay more than $511 per day or more than $5,110 per worker.

Purposes for Which Supplemental Paid Sick Leave Can be Used

An employee who leaves his or her home to perform work, but who is unable to work due to any of the following reasons, is entitled to the supplemental paid sick leave: 

• If subject to a federal, state or local quarantine or isolation order related to COVID-19;
• If advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
• If prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

This last reason takes California’s supplemental paid sick leave above and beyond what is allowed under the federal FFCRA.

Interactions with Other Leave Laws

Supplemental paid sick leave must be provided in addition to any paid sick leave provided under California’s pre-existing Paid Sick Leave law and employers may not require workers to exhaust other paid or unpaid leave before taking supplemental paid sick leave. However, employers that already provided supplemental paid sick leave for the same reasons allowed under the new law (either voluntarily or because they were required to under Governor Newsome’s Executive Order N-51-20 or other local law) may be able to avoid providing additional leave if they can satisfy certain specified criteria.

Effective Date 

For food sector workers, the requirements under this act are retroactive to April 16, 2020. For other covered workers, the requirement to provide supplemental paid sick leave takes effect no later than September 19, 2020. The supplemental paid sick leave expires on December 31, 2020, or upon the expiration of any federal extensions of the federal emergency paid sick leave provisions under the FFCRA.

Wage Statement Requirement

Similar to the requirement to provide California employees with notice of their available sick pay, employers will now also be required to provide employees with notice of their available supplemental paid sick leave each pay period.

Conclusion

Many employers are heading down the road to requiring that employees leave their home offices and return to the workplace. Navigating the dangerous path created by the pandemic is already a challenge. COVID-19 supplemental paid sick leave is the newest roadblock for employers navigating an already precarious path.