California Expands Paid Sick Leave for Workers Dealing with COVID-19

Filling a gap created under the federal Families First Coronavirus Response Act (FFCRA), California recently passed new legislation that gives more California workers who test positive for or have been exposed to COVID-19 access to paid sick leave for the rest of 2020.  Assembly Bill (AB) 1867 requires private employers with 500 or more employees in the United States to provide supplemental paid sick leave in three situations:

1. Where the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
2. Where the employee is advised by a healthcare provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
3. Where the employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Under AB 1867, full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave.  “Full-time” is defined as: (i) an employee worked or was scheduled to work, on average, at least 40 hours per week for the employer for the two weeks preceding the date of the employee’s leave; or (ii) an employee who the employer otherwise considers to be full-time.  Part-time employees are entitled to a prorated amount of leave based on their recent hours worked.

The law makes clear that this new COVID-19 supplemental paid sick leave is in addition to any other paid sick leave the employee may be entitled to under California law.  Employers are not permitted to require employees to use other paid leave provided by the employer before using the new leave.  Employee eligibility for the new leave is immediate.  Compensation during the leave period is the employee’s highest rate of pay.  However, the amount of pay is capped at $511 a day or $5,110 in the aggregate.

Under certain conditions, AB 1867 permits covered employers to offset this new supplemental paid leave against any COVID-19–related paid sick leave previously provided to employees.  The offset may include benefits that the employer already paid pursuant to local COVID-19–related public health emergency leave ordinances.

Finally, employers must display or otherwise communicate to employees a poster with the explanation of the new leave.  Employers must also provide notice in a wage statement of an employee’s available COVID-19 paid sick leave.

AB 1867 will be effective through December 31, 2020, or until the expiration of the FFCRA’s emergency paid sick leave requirements, whichever is later.  Therefore, it is unknown at this time if the supplemental leave will be extended into 2021.

California guidance on this issue is complex and changing rapidly.  Other states may look to California as a trendsetter in this area; we will continue to monitor for additional developments.  If you have questions about this or any other workforce issue, please do not hesitate to contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.