The Families First Coronavirus Response Act (“FFCRA”) requires employers with less than 500 employees to provides up to 80 hours of Emergency Paid Sick Leave (EPSL) to full-time employees. AB 1867 adds Labor Code Section 248.1, which provides up to 80 hours of COVID-19 related supplemental paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) for private employers with 500 or more employees as these employers are exempted from providing EPSL benefits under FFRCA. AB 1867 also provides up to 80 hours of COVID-19 Supplemental Paid Sick Leave for “emergency responder” and “health care provider” employees, who FFCRA permits employers to exempt from coverage under FFCRA.
In addition to providing COVID-19 supplemental sick leave to private sector employers with 500 or more employers and to emergency responders and health care providers, all of whom were excluded from the federal law, AB 1867 codifies the governor’s previously-issued executive order (No. N-51-20) providing similar paid leave and handwashing requirements for food sector workers.
Labor Code section 248.1 entitles such employees exempted from the FFCRA, the right to receive COVID-19 Supplemental Paid Sick Leave if the employee is unable to work for any of the following three (3) reasons, which are generally modeled after the EPSL:
1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. The employee is prohibited from working by the employer due to concerns related to the potential transmission of COVID-19.
The first two qualifying conditions under AB 1867 mirror those provided for EPSL under the FFCRA. The third qualifying condition is slightly different from any qualifying condition for EPSL provided under the FFCRA and would allow a covered employee to qualify for COVID-19 Supplemental Paid Sick Leave if the employer directs the employee not to report to work for reasons related to COVID-19.
In the same manner, as EPSL, employees who qualify to receive COVID-19 Supplemental Paid Sick Leave will be compensated for each hour of such leave at their “regular rate of pay” up to $511 per day and $5,110 in the aggregate.
Importantly, the COVID-19 Supplemental Paid Sick Leave does not provide any statutory entitlement to supplemental paid sick leave for the other EPSL-related reasons under the FFCRA where the affected employee is either:
Caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine; or
Caring for their son or daughter whose school or place of child care is closed for reasons related to COVID-19.
AB 1867 also establishes a separate small employer family leaves mediation pilot program for smaller employers who are now subject to the California Family Rights Act (“CFRA”) based on its expansion under SB 1383. We have included a summary of this part of the bill as part of our summary of SB 1383.
As a budget trailer bill, this bill became law immediately upon the Governor’s signature on September 9, 2020, and its supplemental paid sick leave provisions became effective 10 days later on September 19, 2020.
(AB 1867 adds Section 12945.21 to the Government Code, adds Section 113963 to the Health and Safety Code, adds Sections 248 and 248.1 to the Labor Code, and amends Section 248.5 of the Labor Code.)
