California's New Covid-19-Related Supplemental Paid Sick Leave Law

California's New Covid-19-Related Supplemental Paid Sick Leave Law

On March 18, 2020, the federal government passed the Families First Coronavirus Response Act ("FFCRA") – a law that applies to employers of fewer than 500 employees, requiring them to provide emergency paid sick leave and other coronavirus-related benefits to employees impacted by the COVID-19 pandemic. This, of course, left a myriad of workers at large companies throughout the United States without guaranteed paid sick leave to weather the pandemic. In an effort to fill the gap left wide open by the FFCRA, California Governor Gavin Newsom signed AB 1867 into law on September 9, 2020, which is expected to sunset on the later of December 31, 2020 or the expiration of any federal extension of the FFCRA. 

AB 1867 adds Section 248.1 to the California Labor Code ("Section 248.1"), which, in addition to mandating emergency supplemental paid sick leave (“SPSL”) for covered workers at large companies, also comes along with a SPSL balance display paystub requirement.

Entitlement to California’s New Emergency SPSL Under Section 248.1

Section 248.1 provides covered workers with a new bucket of SPSL that is over and above any other sick leave to which the worker already is entitled. Under the new law, a covered worker means any employee of a private entity with 500 or more employees in the United States who "leaves the person’s home or other place of residence to perform work for the person’s hiring entity." A covered worker does not include Form 1099 loan-out independent contractor personnel.    

A covered worker who works in California is entitled to COVID-19 SPSL only if he or she is unable to work due when (s)he is: (1) subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) advised by a health care provider to self-quarantine or self-isolate due to concerns relating to COVID-19; or (3) prohibited from working by the covered worker’s employer due to health concerns related to the potential transmission of COVID-19. 

With respect to coverage, if the employer considers the covered worker to work “full time," or if the covered worker “worked or was scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered worker took COVID-19" SPSL, (s)he is entitled to up to 80 hours of COVID-19 SPSL. 

The calculation of COVID-19 SPSL under the new California law is more nuanced for covered workers who work less than full time. More specifically, if the covered worker has a normal weekly schedule that is less than full time, (s)he would be entitled to the SPSL at the total number of hours the covered worker is normally scheduled to work for the hiring entity over two weeks. If the covered worker works a variable number of hours, (s)he would be entitled to 14 times the average number of hours the covered worker worked each day for the employer in the six months preceding the date on which the covered worker took the COVID-19 SPSL. If the covered worker has worked for the employer for less than six months, but more than 14 days, the calculation is made over the entire period the covered worker has worked for the employer. And, lastly, if the covered worker works a variable number of hours and has worked for the employer over a period of 14 days or fewer, (s)he is entitled to SPSL at the total number of hours the covered worker has worked for the employer.

An employer must provide the COVID-19 SPSL immediately upon the oral or written request of the worker. The Department of Industrial Relations recently issued a series of Frequently Asked Questions, one of which suggests that an employer may request documentation to validate an employee’s request for COVID-19 SPSL only if the employer has information suggesting the employee is not taking the leave for a valid purpose. The FAQs are available  here.

Covered workers who qualify for California’s new COVID-19 SPSL are entitled to compensation at a rate equal to the highest of: (1) the covered worker’s regular rate of pay for his/her last pay period, including under any collective bargaining agreement; (2) California's minimum wage; or (3) the local minimum wage. That being said, and similar to the FFCRA, employers are not required to pay more than $511 per day per employee, nor more than $5,110 in the aggregate for COVID-19 SPSL taken pursuant to this law.

Employers may offset the COVID-19 SPSL against paid sick leave already provided pursuant to a local paid sick leave ordinance as long as the reason for the leave provided is one of the reasons listed under the new California law and was paid at the same rate of pay as that required by the new COVID-19 SPSL law.

Section 248.1’s New Paystub Requirement

California's new COVID-19 SPSL law requires that employers provide written notice setting forth the amount of payable COVID-19 SPSL available for use on the employee’s paystub. Paystubs covering the next full pay period following the law's enactment on September 9, 2020, must reflect this new bank of COVID-19 SPSL. EP is preparing to implement the new COVID-19 SPSL paystub requirement and will be contacting clients who are or may be covered by the new law in order to assist with this component. As with the other requirements of the new COVID-19 SPSL, clients are responsible for compliance as the common law (controlling) employer that hires, schedules, and manages covered workers and may face liability for violations.

Further, employers must provide payment for the COVID-19 SPSL no later than the payday for the next regular payroll period after the SPSL was taken. And employers cannot require covered workers to use any other paid or unpaid leave, PTO, or vacation time before the covered worker uses the COVID-19 SPSL.

Section 248.1's New Notice Requirement

Section 248.1 also requires employers to display a poster in a conspicuous place containing all of the information relating to the COVID-19 SPSL. Electronic notice in lieu of posting is permitted where covered workers may not frequent a workplace.  The Labor Commissioner has issued a model notice, which is available  here.

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For any questions about this Alert, you may contact:

Pantea Lili Ahmadi, Senior Corporate & Employment Counsel | pahmadi@ep.com

Alan Wu, Director, Employment & Labor Relations Counsel | awu@ep.com

Scott Bishop, Vice President, Employment Law | sbishop@ep.com

Joe Scudiero, Senior Vice President & Chief Labor Counsel | jscudiero@ep.com