On September 9, 2020, Governor Gavin Newsom signed Assembly Bill 1867 (AB 1867) to expand COVID-19-related paid sick leave provisions. According to Governor Newsom’s office, the new law “eliminates coverage gaps to ensure every employee has access to paid sick days if they are exposed or test positive to COVID-19 for 2020.” Find out more about how AB 1867 affects California businesses and workers below.

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What is AB 1867?

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In order to close the coverage gaps left by Executive Order (“EO”) N-51-20 and the Families First Coronavirus Response Act (“FFCRA”), which provides COVID-19-related supplemental paid sick leave to food sector workers and employees of businesses with 500 or fewer workers, Governor Newsom signed AB 1867 into law. Most significantly, the bill codifies existing COVID-19-related supplemental paid sick leave requirements for food sector workers (Labor Code 248) established in EO N-51-20 and extends these mandatory sick leave protections to private employers with over 500 employees nationwide as well as public and private employers of first responders and health care employees who opted not to provide paid sick leave under the federal FFCRA (Labor Code § 248.1).

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In addition, AB 1867 strengthens the enforcement provisions in California’s preexisting paid sick leave law, codifies existing COVID-19-related hand washing standards, and requires the Department of Fair Employment and Housing (DFEH) to create a small employer family leave mediation pilot program.

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What are the newly required supplemental paid sick leave provisions?

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Under AB 1867, private businesses with 500 or more employees, in addition to some employers of emergency responders and health care providers, are now required to provide their California-based employees with COVID-19-related supplemental paid sick leave no later than September 19, 2020, if employees are unable to work when they are:

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• 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 related to COVID-19; and/or
• 3. prohibited from working by the hiring entity due to health concerns related to the potential transmission of COVID-19.

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The amount of COVID-19 supplemental paid sick leave that an employee is entitled to is based upon his/her normal schedule, as follows:

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• 1. “Full time” employees who worked or were scheduled to work, on average, at least 40 hours per week during the two weeks preceding the date of taking sick leave are entitled to 80 hours of supplemental paid sick leave.
• 2. Covered workers with a “normal weekly schedule” are entitled to the total number of hours the covered worker is normally scheduled to work over two weeks.
• 3. Covered workers who work a “variable number of hours” per week are entitled to 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took COVID-19 supplemental paid sick leave (or, if the employee has worked less than six months but more than 14 days, the average hours worked over the entire employment period).
• 4. Covered workers who work a “variable number of hours” and have worked for a period of 14 or fewer days are entitled to the total number of hours the employee has worked for that employer.

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Under AB 1867, workers are entitled to COVID-19 supplemental sick pay at an hourly rate equal to the highest of:

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• 1. the covered worker’s regular rate of pay for their last pay period (including amounts subject to any applicable collective bargaining agreement);
• 2. state minimum wage; or
• 3. local minimum wage.

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However, employers are not required to pay more than $511 per day and $5,110 in total for COVID-19 supplemental paid sick leave taken by each covered worker. Covered workers can determine how much of the maximum COVID-19 supplemental paid sick leave they use, which is available immediately upon their oral or written request.

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This supplemental paid sick leave mandate will expire on the later of either “December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act.” Supplemental paid leave already provided in accordance with EO N-51-20 or federal or local law for the same reasons can count toward the total number of hours of AB 1867’s requirement to provide supplemental paid sick leave.

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Non-food sector employers must provide their employees with notice of the amount of supplemental paid sick leave available to them each pay period under AB 1867. Non-compliance with AB 1867’s COVID-19 supplemental paid sick leave mandate may result in a citation from the California Labor Commission.

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Other Important Provisions

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For employees in the food sector, AB 1867:

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• 1. Requires that employers permit employees working in food facilities to wash their hands every 30 minutes, and as needed.
• 2. Codifies EO N-51-20 mandating COVID-19-related supplemental paid sick leave for food sector workers.

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AB 1867 also requires the Department of Fair Employment and Housing (DFEH) to create a family leave mediation pilot program for employers with between 5 and 19 employees. The pilot program would allow an employer or an employee, within 30 days of procuring a right-to-sue notice alleging a violation of Section 12945.2, to request that all parties participate in mediation through the DFEH’s dispute resolution division. If either the employee or the employer requests mediation, the employee would be prohibited from pursuing any civil action until the mediation is complete. The bill would also toll the employee’s statute of limitations, including for additional related claims, upon receipt of the request by an employer or the employee to participate in the mediation program. These provisions are repealed on January 1, 2024.

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Resources for California Employers

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Find the full text of Assembly Bill 1867 here.

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Find the full text of Executive Order N-51-20 here.

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Find out more about the Families First Coronavirus Response Act (FFCRA) here.

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If you have questions regarding the application of AB 1867 to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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