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  • California Fills in the Gaps on COVID Paid Sick Leave

    Employers Group | 09/18/2020 | Blog, COVID-19, Featured

    California employees at businesses with 500 or more employees nationally will now have the same access to supplemental COVID-related paid sick leave as their compatriots that have been under the provisions of the FFCRA since March of this year.

    On September 9, 2020, California Governor Gavin Newsom signed into law AB 1867, effective immediately (with a deadline for compliance by September 19th) and in effect through the end of the year – alongside the FFCRA.  The law will be enforced by the California Labor Commissioner, although enforcement details have not yet been finalized.

    The overriding impact of AB 1867 is to ensure that paid sick leave for strictly COVID-related reasons will be available theoretically to all employees throughout the state.  Also included now in the supplemental paid sick leave requirements are specific food sector employers, and employers (public and private) of healthcare providers and first responders.

    Here is the full text of AB 1867 and, the Labor Commission has already issued FAQs addressing the new requirements, which can be found here

    If you have not yet registered for our virtual, full-day Workplace & Employment Law Update, at which, this legislation as well as the full range of compliance and workplace best practices will be analyzed through in depth sessions presented by top attorneys and subject matter experts, be sure to do so soon to take advantage of early bird pricing.  Registration is now open at:  https://www.employersgroup.com/attend-welu.

    For more detail and guidance on complying with AB 1867, please continue to our blog…

    In signing off on AB 1867, the governor has not just extended the reach of the FFCRA to employers of 500 or more, but has also codified Executive Order N-51-20 which dates back to April and provided paid sick leave for food sector workers – requiring a “hiring entity” to provide a number of hours of COVID-19 supplemental paid sick leave to each food sector worker who is unable to work due to specified reasons relating to COVID.

    As is always the case, there is a certain degree of devil in the details.  Here are a few highlights:

    Who is now eligible for supplemental paid sick leave?

    Eligibility requirements mirror California’s Healthy Workplaces Healthy Families law of 2014.  Essentially all employees – full-time, part time, temporary, etc. are eligible.

    For what reasons can the supplemental paid leave be taken?

    It is important to remember and to communicate to anyone involved in administering or approving leaves within an organization that AB 1867 paid sick leave is only to be used and approved under very specific situations.  It is strictly related to COVID, and is not additional leave just for the sake of additional leave.

    Most importantly, is that this supplemental leave is available only to employees that must leave the home or place of residence to perform work and they must meet at least one of the following additional conditions:

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

    These conditions will, no doubt, create some confusion for employees and employers alike!

    How much supplemental paid sick leave is now available?

    A full-time employee is entitled to 80 hours of COVID-19 supplemental paid sick leave. More specifically, any employee who worked (or was scheduled to work) an average of at least 40 hours per week in the two weeks before the employee received supplemental paid sick leave would be entitled to the full 80 hours of leave.

    Leave amounts for Part-time employees would vary based on if the employee has a normal weekly schedule, (which would entitle them to paid leave hours equaling the total number of hours up to what they are scheduled to work over two weeks) or, if they have a variable schedule, they would be eligible for leave time equal to 14 times the average number of hours they worked each day in the six months before the leave date. The calculation for a worker employed less than six months would be made over the entire period of employment.  This is the same as FFCRA entitlements for employers under 500 employees.

    How does this leave interact with existing paid sick leave, PTO, vacation or other time off?

    Employers may not require employees to exhaust their accrued sick days or vacation under existing time off policies first.   This supplemental COVID paid sick leave will be in addition to any paid sick leave that may be available to the worker as defined in Labor Code section 246.

    How is pay calculated?

    Leave under AB 1867 is calculated based on the highest of wither the employee’s regular rate of pay for the most recent pay period prior to the leave, the current state minimum wage or the current local, municipal minimum wage.  As with the FFCRA pay rates, the total dollar amount of the supplemental paid sick leave is capped at $511 per day and $5,110 total per worker.

    What about the pay stub?

    One of the most challenging compliance requirements for many employers when mandatory paid sick leave became effective in mid-2015 was the need to state the current balance of available paid sick leave on each employee’s pay stub or through a separate notification.

    Are there any new posting requirements because of this?

    Yes – of course.  For employers not previously required to post this in a “conspicuous place” in the workplace, this should be done as soon as possible.  For a copy of the general (non-food sector) model notice, click here., and for a copy of the model notice for food sector workers, click here.

    Final suggestions and advice…

    Remember that, although AB 1867 applies only to employers with 500 or more employees, it is essentially the same as the requirements for employers with under 500 employees as defined by the FFCRA.  With just over three months to go in the year, this is a good time to re-familiarize yourself with these requirements.

    It is definitely advisable to train supervisors and managers about this new law.  They are usually your first line of communication, your first line of defense and your first line of liability.  Ensure that they understand these new conditions and that the organization has a clear and defined process for addressing related requests and questions as they come up.

    This new newly pass law plus all others and so much more will be covered at this year’s Employers Group Workplace & Employment Law Update on November 18 and December 8.  Go here to register or to review the agenda.

    Workplace & Employment Law Update by Employers Group