New Supplemental Paid Sick Leave for California Signed into Law

California Governor Gavin Newsom has signed Assembly Bill 1867, which establishes COVID-19 supplemental paid sick leave for certain workers as described below. The bill also codifies Executive Order N-51-20 related to food sector workers, among other requirements.

The below is a review of the bill’s paid sick leave highlights. The full text of the ordinance can be found here.

Which employers are affected? “Hiring Entities” must provide paid sick leave on behalf of their employees. A hiring entity is any private entity that employs 500 or more employees in the United States.

Additionally, the supplemental leave applies to entities, including public entities, who employ health care providers or emergency responders and opted not to provide leave under FFCRA.

When is this paid sick leave effective? The sick leave provision goes into effect on September 19, 2020. It expires on December 31, 2020 or when any federal extension of FFCRA expires, whichever is later.

Are there exceptions? Yes.

  • Workers who have already taken supplemental paid sick leave under Executive Order N-51-20 (food sector)
  • Employers who have already provided some form of COVID-19 specific sick leave may not be required to provide the new supplemental sick leave if the following applies:
    • After March 4, 2020, the employer provided a comparable supplemental benefit.
    • The supplemental benefit provided by the employer must have been equal to or greater than the amount the employee would have been entitled to under AB 1867.
      • If the previous leave provided to the employee was not sufficient to the new supplemental sick leave under AB 1867, the employer may retroactively provide supplemental pay to the employees to satisfy AB 1867 rather than providing additional leave time. In this case, the hours can count towards the new supplemental paid sick leave.

Which employees may apply for the supplemental paid sick leave? A California employee who performs work for or through any of the affected employers. The employee must leave the home or place of residence to perform work.

What are the qualifying reasons for an employee being granted this paid sick leave? The employee must leave the home or place of residence to perform work and satisfy one of the following three conditions:

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

What documentation can the employer request to grant leave for these qualifying reasons? This leave must be granted upon oral or written request.

Amount of Leave:

  1. An employee who works at least 40 hours per week or is classified as a full-time employee by the employer shall receive 80 hours of supplemental paid sick leave. Supplemental paid sick leave shall be calculated based upon the highest of the employee’s regular pay rate for the last pay period; the state minimum wage; or the applicable local minimum wage.
  2. An employee who works less than 40 hours per week and is not classified as a full-time employee by the employer shall receive supplemental paid sick leave in an amount equal to 14 times the average number of hours the individual 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.
  3. There is a special provision for firefighters. A covered worker who is also an active firefighter who was scheduled to work more than 80 hours for the employer in the two weeks before the employee took COVID-19 supplemental paid sick leave would be entitled to leave equal to the total number of hours they were scheduled to work in the preceding two weeks.

In no event shall the supplemental paid sick leave amount paid to an employee exceed $511 per day and $5,110 in the aggregate.

Can an employer force an employee to use other paid leave first? No. The law expressly provides additional leave on top of any paid sick leave that may already be available to employees under Labor Code Section 246.

Are there employer notification requirements? Yes. The Labor Commissioner must make a model posting publicly available. The notice may be provided by electronic means in lieu of posting if the hiring entity’s covered workers do not frequent a workplace.

Additionally, employers must update their wage statements to provide notice of the amount of paid sick leave available under the law starting with the pay period following September 9, 2020.


About Michelle Cammayo

Michelle Cammayo has more than 13 years of Employee Benefits experience specializing in all lines of health and welfare benefits. Today, Michelle works closely with clients and partners to provide guidance in areas of the law including ERISA, HIPAA, COBRA, FMLA and PPACA. She also oversees the Compliance Department at Bolton & Company to ensure we are helping our clients manage and eliminate risk with regards to employee benefit compliance.

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