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Hinshaw's 12 Days of California Labor & Employment Series – Day 10: COVID-19 Supplemental Paid Sick Leave Expanded to All Employers

In the spirit of the season—and keeping some semblance of normal—we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On this tenth day of the holidays, my labor and employment attorney gave to me: ten lords a-leaping and AB 1867.

AB 1867 fills a void that was left by the Families First Coronavirus Response Act (FFCRA) regarding paid sick leave. The FFCRA was enacted to provide federal paid sick leave and expanded family leave due to the pandemic, but it only applied to employers with less than 500 employees. In response, California enacted a supplemental COVID-19 paid sick leave law through AB 1867. Applicable to businesses with 500 or more employees nationally, AB 1867 in essence guarantees that any employee—regardless of the size of the employer—will receive paid sick leave if needed due to COVID-19.

Notably, AB 1867 only applies to employees who are unable to work from home and must work at the employer premises, wherever that might be. Gingerbread house next to the number 10These employees are able to receive supplemental paid sick leave under AB 1867 if any of the following apply:

  • The employee is unable to work due a federal, state, or local quarantine or isolation circumstances;
  • The employee was advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19;
  • The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

The FFCRA expires December 31, 2020 AB 1867 will expire on December 31, 2020 or whenever the FFCRA or any subsequent extensions expired, whichever was later. Since the latest pandemic stimulus package passed by Congress does not extend the FFCRA, AB 1867 will expire on December 31, 2020, unless something else transpires or further action is taken before then.

A qualified employee is entitled to 80 hours of COVID-19 supplemental paid sick leave if either of the following criteria are met:

  • The employer considers the employee to work "full time"; or
  • The employee 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 employee took COVID-19 supplemental paid sick leave.

For qualified non-full time employees, the minimum amount of COVID-19 supplemental paid sick leave shall be calculated as follows:

  • When an employee has a regular weekly schedule, the total number of hours the employee is usually scheduled to work for the employer over two weeks is the number of hours of paid leave allowed;
  • When an employee works a variable number of hours, 14 times the average number of hours the employee worked each day in the six months prior to taking COVID-19 supplemental paid sick leave or, if the employee has been employed for less than six months, over the entire period the employee has worked for the employer is the number of hours of paid leave allowed; or
  • If the employee works a variable number of hours and has worked for the employer over a period of 14 days or fewer, the total number of hours the employee has worked is the number of hours of paid leave allowed.

COVID-19 supplemental paid sick leave must be used prior to any other paid leave provided by the employer. The employer cannot force an employee to use any other leave first. As AB 1867's expiration date approaches, it is pertinent to know that if AB 1867 expires while an employee is taking COVID-19 supplemental paid sick leave, the employee shall be permitted to take the full amount of COVID-19 supplemental paid sick leave to which he or she otherwise would have been entitled to—even if it passes the expiration date.

Lastly, AB 1867 creates a small employer family leave mediation pilot program. The program authorizes a small employer or an employee of that employer to request all parties to participate in mediation through the Department of Fair Employment and Housing's (DFEH) dispute resolution division within a specified timeframe, after notice. An employee will be prohibited from pursuing a civil action until the mediation is complete if an employer or employee requests mediation. This program also provides that the statute of limitations for the employee is tolled, including for additional related claims, from receipt of a request to participate in the program until the mediation is complete.

Employers have been providing COVID-19 supplemental paid sick leave since the inception of AB 1867 in September. They must continue to do so through the end of the year. Due to the increasing COVID-19 numbers, it would not be surprising if California takes further action.

Finally, employers need to remember that if a qualified employee takes leave before December 31, 2020, they are entitled to their full leave time—even if it goes into 2021.

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