On September 9, 2020, Governor Gavin Newsom signed legislation (AB 1867) that ensures all California employees can take up to an additional 80 hours of paid sick leave for their own health concerns related to COVID-19, if they weren’t eligible for such leave under the Families First Coronavirus Response Act (FFCRA). First, the bill adds a section to the California Labor Code for COVID-19 Food Sector Supplemental Paid Sick Leave (Food Sector SPSL), which brings the governor’s existing Executive Order N-51-20 for food sector workers under the enforcement umbrella of the Labor Commissioner. Second, the bill creates a new COVID-19 Supplemental Paid Sick Leave (SPSL) program to fill in some of the gaps in coverage under the FFCRA. This new SPSL program extends coverage to employers with 500 or more employees in the U.S. and to all FFCRA-covered employers that chose to exclude health care provider and emergency responder employees from FFCRA coverage.
The food sector leave portion of the bill closely mirrors the governor’s earlier order (EO N-51-20), which we previously reported on, and provides up to 80 hours of COVID-19 Food Sector SPSL for food sector workers of employers with 500 or more employees. COVID-19 Food Sector SPSL applies retroactively to April 16, 2020, and expires on December 31, 2020. On a related note, the bill requires employers to permit employees working in any food facility to wash their hands every 30 minutes and additionally as needed.
The regular COVID-19 SPSL program takes effect September 19, 2020 (10 days after enactment of the bill), covering workers who aren’t food sector workers and (1) who leave their residence to perform work for an employer with 500 or more employees in the U.S.; or (2) who are employed as a health care provider or emergency responder by an FFCRA-covered employer that elected to exclude them from the emergency paid sick leave (EPSL) provisions of the FFCRA. As with the COVID-19 Food Sector SPSL, COVID-19 SPSL provides up to 80 hours of SPSL upon oral or written request. However, an active firefighter scheduled to work more than 80 hours in the two weeks prior to taking SPSL must be provided an amount of SPSL equal to the number of hours they were scheduled to work in those two preceding weeks.
For both types of SPSL, leave is available for reasons related to the employee’s own COVID-19 health concerns but not for time off to care for family members. The rate of compensation for both the COVID-19 Food Sector SPSL and the regular COVID-19 SPSL must be at whatever rate is higher: the worker’s regular rate of pay in the last pay period, the state minimum wage, or an applicable local minimum wage. Total pay is capped at $511 per day and $5,110 total combined. COVID-19 Food Sector SPSL and regular COVID-19 SPSL are provided in addition to any existing paid sick leave available but may be offset by any supplemental paid sick leave that food sector employers already provided under Executive Order N-51-20. Additionally, if the worker has already been provided with a supplemental benefit (beyond anything required by law), compensated in an amount equal to or greater than the amount the worker would have received under the SPSL, for the same covered COVID-19 related reasons, then those hours may also be used as an offset. Employers cannot require the use of other paid or unpaid time off before or in lieu of the worker using either COVID-19 Food Sector SPSL or regular COVID-19 SPSL. Both types of leave are set to expire on December 31, 2020, although if an employee is already taking the leave at the time of expiration, the employee is entitled to take the full amount of leave even if it extends into 2021. The Labor Commissioner will enforce the bill provisions the same as if it were California paid sick leave under existing law.
Tips: By the next full pay period following the bill’s enactment on September 9, 2020, employers must include in the worker’s itemized wage statement the amount of regular COVID-19 SPSL (not Food Sector SPSL) available each pay period. By seven days after the regular COVID-19 SPSL effective date, the Labor Commissioner is required to create a model poster addressing the new leave entitlement, which must be displayed where employees can easily read it. For workers who don’t frequent the workplace, employers can satisfy the poster requirement by distributing the poster to workers electronically. Questions? Contact your Vigilant Law Group employment attorney.