On September 9, 2020 Governor Newsom signed AB 1867 into law, giving California employers just 10 days to implement new COVID-19 Supplemental Paid Sick Leave statewide. Below we highlight the major provisions of the new law (Labor Code 248.1, or “LC 248.1”) as well as nuances employers should keep in mind as they put their program into place. (For clarity, we refer to this new leave as “LC 248.1 leave” to avoid confusion between this new statewide mandate and other federal and local laws expanding available paid sick leave due to COVID-19.)
Private businesses with 500 or more employees nationwide (including delivery and transportation network companies), as well as employers of certain healthcare providers or emergency responders not covered by the federal Families First Coronavirus Response Act (FFCRA), are required to provide their California-based employees with LC 248.1 leave. Employers unsure whether they meet the 500-employee threshold are instructed to look to federal law (29 CFR § 826.40(a)).
“Covered employees” include individuals employed by a hiring entity (as defined in the statute) who leave their homes/residences to perform work for the hiring entity. This means employees working fully remotely are not entitled to the new supplemental leave.
Employees are permitted to take LC 248.1 leave for three specific reasons:
California employees are entitled to two weeks’ paid leave under LC 248.1, in addition to standard paid sick leave (under LC 246). For full-time employees, this means a bank of 80 hours of LC 248.1 leave. Part-time workers with regular weekly schedules are entitled to the total number of hours the employee is normally scheduled to work in a two-week period (e.g., 40 hours for a 50% FTE employee). Computing the allotment of LC 248.1 leave for part-time employees with variable schedules is more complicated, but the California Labor Commissioner’s LC 248.1 guidance provides examples of permissible ways to calculate (see Item 16).
The law caps total payouts per employee under LC 248.1 at $511 per day and $5,110 total.
If an employer already offered paid supplemental COVID-19 leave to employees prior to the new law taking effect – either due to a voluntarily-adopted policy, or to comply with a federal or local requirement – they can credit those hours towards an employee’s LC 248.1 entitlement in some circumstances. The employer’s prior provision of leave must have been paid, and payable for the reasons set forth in LC 248.1; prior supplemental unpaid sick leave, or supplemental sick leave permitted for different reasons, does not qualify. If the previously provided supplemental leave was paid out at less than the rate of pay LC 248.1 requires, an employer may retroactively “true up” the employee and then offset those hours against the LC 248.1 entitlement (rather than providing additional leave time).
Additional guidance from the California Labor Commissioner on the interaction of LC 248.1 and other supplemental leave requirements or offerings is available here (see Items 22-25).
While California employers may have already begun implementing LC 248.1, it’s worth double-checking to ensure practices comply with the host of requirements embedded in the new law, including: