EDITOR’S NOTE: We posted on this legislation on Friday, but there were additional developments that occurred over the weekend, so we are replacing the Friday post with the following updated version.

As you are probably aware, the Emergency Paid Sick Leave Act of the federal Families First Coronavirus Response Act provides for 80 hours of paid sick leave to employees with qualifying reasons who work for employers with fewer than 500 employees. But what about workers who don't have rights under the FFCRA? Shouldn’t they get some paid time off during this pandemic? 

Well, the federal government may have felt that large employers would provide paid time off anyway, but the state of California is not that confident. As a result, Gov. Gavin Newsom (D) signed emergency legislation providing supplemental paid sick leave to workers not covered by the FFCRA.

Earlier this year, he signed Executive Order N-51-20, which requires “hiring entities” with 500 or more employees in the United States that employ “food sector workers” to provide supplemental paid sick leave under certain conditions related to the pandemic. 

The California Assembly has decided that Gov. Newsom's Executive Order did not go far enough, so it enacted AB 1867, which became effective on Saturday, September 19. AB 1867 codifies Executive Order N-51-20 (new Labor Code Section 248), beefs up the enforcement process (amended Labor Code Section 248.5), and expands the Executive Order’s definition of “hiring entities” to include private employers in non-food-sector industries with 500 or more employees nationwide and all employers (both public and private, and regardless of size) of first responders and health care workers who had determined that these workers were not eligible for FFCRA leave (new Labor Code Section 248.1). 

As with food-sector workers covered under Executive Order N-51-20 (Labor Code Section 248), the workers covered under AB 1867 (Labor Code Section 248.1) are those that leave their home to perform work. Also, both laws provide the same qualifying reasons for leave:    

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
• The employee is 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 due to health concerns related to the transmission of COVID-19.

Although AB 1867 took effect on Saturday, the provisions pertaining to food- sector workers under the Executive Order are retroactive to April 16, 2020. Both Section 248 and Section 248.1 expire whenever the Emergency Paid Sick Leave Act provisions of the FFCRA expire. That is currently December 31, but the laws could expire later if Congress postpones the expiration of the FFCRA. As with the FFCRA, the supplemental paid sick leave is capped at $511 a day and $5,110 in the aggregate for each employee.

If an employee has some sick or vacation pay, the covered employer must let the employee use this new paid leave first -- before using sick or vacation time. Employees who have already taken supplemental paid sick leave under Executive Order N-51-20 would not be entitled to additional leave. Employers who already provide the same or more paid sick leave for COVID-19 do not have to provide additional supplemental paid sick leave under this new legislation.

The new law also has notice, pay stub, and recordkeeping requirements. The Labor Commissioner has provided a model poster. If employees are working remotely, employers may provide the notice electronically. Employers must also provide written notice regarding the amount of leave available on employees’ itemized pay stubs or in a separate writing provided on designated pay dates. They also must maintain records documenting hours worked, leave provided, and leave used by employees for at least three years.

The Labor Commissioner has also posted a set of Frequently Asked Questions about this legislation.

Employers, beware. The new law has teeth – it provides for enforcement by the Labor Commissioner and civil penalties for violations, in addition to a panoply of remedies provided by state and local laws, including California Business and Professions Code section 17200.