On September 9, 2020 Governor Newsom signed AB 1867 granting COVID-19 paid sick leave to many employees who were excluded from eligibility under the Federal Families First Coronavirus Response Act.  Covered employers must begin providing this new supplemental paid sick leave no later than September 19, 2020, and post a required notice.

Covered Employers

The California Supplemental Paid Sick Leave Act expands leave coverage to:

(a) all employers with 500 or more employees in the United States (e.g., those not covered by the Families First Coronavirus Response Act (FFCRA)), and

(b) health care providers and emergency responders whose employers elected to exclude them from FFCRA paid sick leave eligibility.

Eligible Employees

Employees are eligible to take the new COVID-19 supplemental paid sick leave if the worker meets one or more of the following criteria:

  1. The employee is employed by a covered employer;
  2. The employee is employed as a health care provider or emergency responder and the employer has elected to exclude the employee from FFCRA sick leave eligibility. The definition of “health care provider” has been narrowed, and includes only employees providing health care services, meaning the employee is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. The new definition of health care provider states that employees who do not provide health care services are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

An employee is not entitled to supplemental paid sick leave if the employee is able to work from home.

In addition, an eligible employee does not include:

  • An employee who works in the following industries:
    • Canning, Freezing, and Preserving;
    • Handling Products After Harvest;
    • Preparing Agricultural Products for Market on the Farm; or
    • Employed in an agricultural occupation
  • An employee who works for a food facility, defined as an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level.
  • An employee who delivers food from a food facility.

Although these employees are excluded from the COVID-19 Supplemental Sick Leave, they may be covered by Executive Order N-51-20, which provides paid sick leave to food sector employees.  See https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf

Reasons for Taking Supplemental Sick Leave

An eligible employee is entitled for COVID-19 supplemental paid sick leave if the employee is unable to work because the employee is:

  • Subject to a federal, state or local quarantine or isolation order related to COVID-19; or
  • 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 employer due to health concerns related to the potential transmission of COVID-19.

Amount of Leave

Full-time employees are eligible for 80 hours of COVID-19 supplemental paid sick leave.  “Full-time” means the employee:

  • Is considered “full-time” by the employer; or
  • Is scheduled to work 40 hours per week; or
  • Worked, on average at least 40 hours per week during two weeks prior to taking leave.

Part-time employees are eligible for the number of sick leave hours equal to the number of hours the employee is normally scheduled to work in two weeks. If an employee works a varying schedule, the employee is entitled to sick leave hours equal to 14 times the average number of hours the employee worked each day in the six months prior to the leave, or over the total time of employment if less than six months.

The supplemental leave must be provided in addition to already existing State paid sick leave under the Healthy Workplaces, Healthy Families Act of 2014.  However, any California employer who provided COVID-19 related sick leave due to a local ordinance requiring COVID-related paid sick leave ordinance may count the local ordinance-provided paid sick leave toward this new California supplemental paid sick leave.  For example, if an employer provides a full-time worker 40 hours of COVID-19-related supplemental paid sick leave as required by a local ordinance, those 40 hours would count toward the employer’s obligations under this new California supplemental paid sick leave law as long as the leave provided by the employer is for a reason listed under this new California law and is at least at the same rate of pay as this new California law requires.  Employers may not require employees to use other paid or unpaid leaves before the employee uses this new COVID-19 supplemental paid sick leave.

An employer may not require the employee to use other paid or unpaid leave, sick leave, vacation, PTO before using COVID-19 supplemental paid sick leave.

Pay Rate

Eligible employees are paid COVID-19 supplemental paid sick leave at the employee’s regular rate of pay as if the employee has been scheduled to work the hours the employee took off as COVID-19 supplemental paid sick leave, up to a maximum of $511 per day and $5,110 in total.

Medical Certification

California employers may not require a doctor’s note or other certification regarding an employee’s use of this new supplemental paid sick leave, nor may the employer deny the employee leave based solely on a lack of certification.  However, the Labor Commissioner has stated that it may be reasonable in certain circumstances to ask for documentation before paying the sick leave when the employer has other information indicating that the worker is not requesting COVID-19 Supplemental Paid Sick leave for a valid purpose.

Notice Requirements

The law requires employers to post and to provide the following notice to all employees: https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf

For any remote workers, the notice may be emailed to them.

Sunset Provision

Covered employers must begin providing supplemental paid sick leave no later than September 19, 2020.  The supplemental sick leave provision will expire on December 31, 2020, or upon the expiration of any federal extension of the federal emergency paid sick leave provisions under the FFCRA, whichever is later.

For more information, visit the FAQs at:  https://www.dir.ca.gov/dlse/FAQ-for-PSL.html