California: Supplemental COVID-19 Sick Leave Bridges FFCRA Gap

Governor Newsom signed into law AB 1867, which implements supplemental COVID-19 paid sick leave for certain employees who are not covered by the Families First Coronavirus Response Act (FFCRA), and for food sector workers, as follows.

1. Eligibility: Private employers with 500 or more employees; healthcare providers and emergency responders exempt from the federal FFCRA regardless of size; and food sector workers (including delivery drivers) regardless of size. In order to be eligible, employees must leave their residence to perform work for their employer.
2. Leave Amount: Employees are only entitled to the total amount of supplemental paid sick leave below, regardless of any change in employer.
   1. Full-time employees: 80 hours of supplemental paid sick leave; except that firefighters who are scheduled to work more than 80 hours in the two weeks preceding leave shall receive the equivalent amount in supplemental paid sick leave.
   2. Part-time employees: paid sick leave equal to (1) the total number of hours the employee is normally scheduled to work in a two-week period; (2) if variable schedule, 14 times the average number of hours the employee worked each day in the six months preceding the date the covered worker takes supplemental paid sick leave, or 14 times the average number of hours worked over the entire period if the employee has worked fewer than six months for the employer; or (3) if variable hour and working for the employer over a period of 14 days or fewer, the total number of hours the employee has worked for the employer.
3. Usage: Paid sick leave may be used for an employee who is:
   1. Subject to federal, state, or local quarantine/isolation order related to COVID-19;
   2. Advised by a healthcare provider to self-quarantine/isolate due to concerned related to COVID-19; or
   3. Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19
4. Rate: Supplemental paid sick leave must be paid a rate equal to the highest of the following, and subject to a maximum cap of $511/day or $5,110 in aggregate:
   1. The employee’s regular rate of pay for the last pay period;
   2. The state minimum wage; or
   3. The local minimum wage.
5. Notice Requirements:
   1. Model notice: Employers of non-food sector workers must conspicuously display a model notice provided by the Labor Commissioner, or distribute the model notice electronically.
   2. Pay stubs: Employers must print the amount of available supplemental paid sick leave on wage statements starting the first pay period after September 9, 2020.

Employers who already provide supplemental paid sick leave pursuant to federal, state, or local laws may have such leave counted towards satisfying their leave obligation under AB 1867, so long as time off and pay rate complies with the requirements of AB 1867. However, the amount of supplemental paid sick leave is required in addition to paid sick leave already required by the state of California; except to the extent that employees received supplemental paid sick leave under Executive Order N-51-20.

Additionally, if large employers and employers of healthcare workers already provided supplemental paid leave between March 4, 2020 and September 19, 2020 for qualifying leave reasons, but did not pay the employee using at least the minimum pay rate required for supplemental paid sick leave, the employer may retroactively provide the employee with supplemental pay at the required pay rate, and those hours may count towards the total number of hours required for supplemental paid sick leave.

Supplemental paid sick leave for large employers and employers of healthcare workers is effective as of September 19, 2020. Supplemental paid sick leave for food sector workers is retroactive to April 16, 2020 when Executive Order N-51-20 was implemented. Supplemental paid sick leave expires for all applicable workers on December 31, 2020, or upon expiration of any federal extension of FFCRA, whichever comes later.

Action Items

1. Read the text of the bill here.
2. Review payroll systems to track and incorporate available supplemental leave balances on pay stub.
3. Distribute notice of the supplemental paid sick leave to employees.
4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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