On September 9, 2020, Governor Newsom signed Assembly Bill (AB) 1867 into law, adding section 248.1 to the Labor Code. Under this new section, “hiring entities” are required to provide supplemental COVID-19 paid sick leave (CPSL) to “covered workers.” This is in addition to any paid sick leave that may be available to the covered workers under California’s Healthy Workplace Healthy Family Act of 2014 (HWHFA).
“Hiring entities” include private businesses with 500 or more employees in the United States or public entities that employ health care providers or emergency responders that have elected to exclude such employees from emergency paid sick leave under the Federal Families First Coronavirus Response Act. Notably, there is no exception for unionized workforces with a collective bargaining agreement providing for paid sick leave.
“Covered workers” include individuals employed by a hiring entity that leave home to perform work. Excluded from covered workers are food sector workers, who are instead provided supplemental COVID-19 paid sick leave under Labor Code section 248.
Amount of leave
The amount of leave to which a covered worker is entitled under Labor Code section 248.1 is broken down into three categories.
- Full Time: A covered worker is entitled to 80 hours of CPSL if the hiring entity considers the worker “full time” or if it scheduled the covered worker to work, on average, at least 40 hours per week in the preceding two weeks.
- Part Time: Covered workers that are not full time are entitled to leave based on the covered worker’s schedule as follows:
a. Set Schedule: A covered worker with a normal weekly schedule is entitled to leave that amounts to the total number of hours the covered worker is normally scheduled to work for the hiring entity over two weeks.
b. Variable Schedule: A covered worker who works a variable number of hours is entitled to leave that amounts to 14 times the average number of hours the covered worker worked each day for the hiring entity in the six months preceding the date the covered worker took CPSL.
- Firefighter: A covered worker who is an active firefighter who was scheduled to work more than 80 hours for the hiring entity in the preceding two weeks is entitled to an amount of CPSL equal to the total number of hours that the covered worker was scheduled to work for the hiring entity in those two preceding weeks.
Wage statement requirement
Hiring entities are required to provide written notice of the amount of CPSL available to a covered employee either on an itemized wage statement or in a separate writing provided on designated pay dates.
Rate of pay
Each hour of CPSL must be paid at a rate equal to the highest of the following: (i) the covered worker’s regular rate of pay; (ii) the state minimum wage; or (iii) the local minimum wage.
Notwithstanding the above, a hiring entity is not required to pay more than $511 per day, and $5,110 in total, to a covered worker for CPSL.
Covered workers are entitled to CPSL when the covered 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 covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.
Exceptions for employers that provide other supplemental paid sick leave
If a hiring entity already provides a covered worker with supplemental paid leave for the reasons listed above that is equal or greater in value to the compensation listed above, then the hiring entity may count the hours of the other paid benefit or leave towards the total number of hours of CPSL that the hiring entity is required to provide to the covered worker under section 248.1.
Hiring entities that have already provided another form of supplemental paid leave between March 4, 2020, and the effective date of Labor Code section 248.1 for the specified reasons, may retroactively provide pay to the covered worker to satisfy the compensation requirements under Labor Code section 248.1, in which case those hours will count towards the total number of required CPSL hours.
This requirement to provide CPSL will expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act, whichever is later.
Although not discussed here, AB 1867 also: (1) added LC 281, which codified existing COVID-19 handwashing and CPSL requirements for food sector workers; (2) created a family leave mediation pilot program for small employers; and (3) amended enforcement provisions in California’s Healthy Workplace Healthy Family Act of 2014.
The Labor Commissioner is authorized to enforce Labor Code section 248.1. If the Labor Commissioner determines that there has been a violation, hiring entities may be liable for:
- The dollar amount of paid sick days unlawfully withheld from the employee multiplied by three, or $250, whichever is greater, up to $4,000 total; and
- $50 per day, or portion thereof, up to $4,000, if an employee is discharged or has his/her rights under section 248.1 otherwise violated.
In addition, the Labor Commissioner is authorized to pursue civil action against non-compliant hiring entities and seek penalties of up to $50 per day for each employee or person whose rights were violated. Lastly, businesses may be subject to penalties for failing to include the balance of the CPSL available on each workers’ paystub.
Hiring entities in California should immediately update their paid sick leave policies to ensure compliance and revise covered workers’ wage statements to reflect the amount of CPSL available. Employers should also consider whether this new law applies to mobile workforces, including non-residents, who may travel in and out of California for their job duties.
 HWHFA entitles any employee who, on or after July 1, 2015, works in California for 30 or more days, to paid sick leave.