On September 19, 2020, Assembly Bill 1867 went into effect. This new legislation requires certain private employers to provide their California employees with paid sick leave if the absence is related to COVID-19. It also codifies Executive Order N-51-20, which provides food sector workers with supplemental paid sick leave, and it expands FFCRA coverage to entities that employ emergency responders or healthcare providers. AB 1867 will remain in effect until December 31, 2020 or any extension of the Families First Coronavirus Response Act (FFCRA), whichever is later.
Which Employers Are Subject to AB 1867
AB 1867 applies to private employers that have five hundred or more employees within the United States. Healthcare providers and emergency responders were previously excluded from eligibility for emergency paid sick leave. AB 1867 has expanded coverage to all employers who employ these personnel, regardless of public entity status or number of employees.
Eligibility for Paid Sick Leave
All employers covered by AB 1867 must provide supplemental paid sick leave for the following reasons:
- The employee is subject to a COVID-19 related quarantine or isolation order;
- A healthcare provider has advised the employee to self-quarantine or self-isolate for reasons related to COVID-19; or
- The employer has prohibited the employee from working due to COVID-19 concerns.
Employees who leave their place of residence to work for the employer are entitled to 80 hours of COVID-19 supplemental paid sick leave (CSPSL) if they are considered full-time workers; or they worked (or were scheduled to work) an average of at least 40 hours per week during the two weeks prior to taking sick leave.
Those who do not work full-time will be compensated according to the following:
- Employees with a normal weekly schedule receive paid sick leave equal to the hours they usually work over a two-week period.
- Those who work variable hours receive 14 times the average number of hours they worked each day during the six months prior to taking leave or, for those employed less than six months, over their entire employment period.
- Employees who work variable hours and have been employed no more than 14 days are eligible for sick leave equal to the total number of hours they have worked.
It is important to note that COVID-19 supplemental paid sick leave is in addition to any other paid sick leave the employee may be entitled to under the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code 246), and employers may not require them to use other available paid leave first. If AB 1867 expires while employees are on leave, they shall be permitted to take the full amount they would normally have been entitled to.
Rate of Compensation
Employees using CSPSL are compensated at the highest of the following:
- Their regular rate of pay
- California state minimum wage
- Local minimum wage to which they may be entitled
Notwithstanding these guidelines, supplemental sick pay is capped at $511 per day and $5,110 total. Employers that previously provided sick leave for reasons related to COVID-19 and paid employees an amount equal to or greater than what is required under AB 1867 may count these hours toward the total number that the Act requires. Employers who provided leave at a lower compensation rate may retroactively provide supplemental pay and, thereafter, count those hours toward those required under the Act.
Employer Notice Requirements
Employers are required to display a poster explaining CSPSL in their workplace. For employees who do not frequent the workplace, employers are required to provide notice electronically. They must also provide notice of an employee’s available CSPSL each pay period on the wage statement or another document provided on the same day.
Conclusion
California employers who are determined to have unlawfully withheld CSPSL can be subject to penalties of $250 or more per day, and up to $4,000 in total. Any employer with questions or concerns about AB 1867 should consult with an employment attorney who can help them avoid unintentional violations and ensure they compensate eligible employees as required.
