As businesses continue to grapple with the operational and economic impacts of the COVID-19 pandemic, the California legislature has again imposed additional COVID-related burdens on California employers, this time in the form of additional mandatory paid sick leave.
The new law, which was signed by Governor Newsom yesterday and codifies and extends Newsom’s Executive Order N-51-20 and therefore takes immediate effect for employers in the food service industry, mandates up to 80 hours of paid sick time for employees affected by COVID as set forth in the law. For employers of first responders, health care workers, or any employer with over 500 employees, the law takes effect no later than September 19. Employers’ obligations under the new law will expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act (FFCRA), whichever is later.
The new law is controversial because it mandates paid leave in circumstances that were deliberately exempted from the FFCRA, passed this spring, which applies only to employers with fewer than 500 employees and authorizes employers to exclude health care providers and emergency responders from the paid sick leave provisions of the Act. More information about the FFCRA can be found in the two articles below.
Paid Sick Leave for Employers with 500 or More Employees, Healthcare Providers and Emergency Responders
Under the new law, California employers with 500 or more employees and employers of any size who employ health care workers and emergency responders must provide employees with supplemental paid sick leave under the following circumstances:
- Where the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Where the employee had been advised by a health care provider to self-quarantine or self- isolate due to concerns related to COVID-19; and
- Where the employee is prohibited from working by hiring entity due to health concerns related to the potential transmission of COVID-19.
The employee must leave his or her home to perform work for the employer in order to qualify for leave. Employees are entitled to 80 hours of paid sick leave if either (1) the employer considers the worker to work “full-time”; or (2) the worker worked or was scheduled to work an average of at least 40 hours per week in the two weeks preceding the start of the leave. Part-time employees are eligible for variable leave amounts depending on the hours worked.
The leave must be paid at the employee’s regular rate of pay, the state minimum wage rate, or the applicable local minimum wage, whichever is highest. Similar to the FFCRA, pay is capped at $511 per day and $5,110 in the aggregate, per employee.
Paid Sick Leave for Food Sector Workers
The law imposes the same obligations discussed above on employers in the food sector industry with 500 or more employees. That is to say, these employers are also required to provide COVID-19 paid sick leave to employees for the qualifying reasons indicated above and at the hours, rate, and caps indicated above. Food sector companies are already familiar with these obligations—the law codifies Governor Newsom’s Executive Order N-51-20, signed April 16, 2020. The supplemental paid sick leave required under this law is not in addition to the total number of hours of supplemental paid leave available under Executive Order N-51-20, meaning that employers who have already provided employees with paid sick leave under the Executive Order will not be required to provide additional sick leave under this new law.As employers who are familiar with Executive Order N-51-20 already know, the type of food sector workers covered by the law ranges from farmworkers to workers who work in the retail food supply chain, including pick-up, delivery, supply, packaging, retail, or preparation. Accordingly, grocery workers, restaurant or fast food workers, workers at warehouses where food is stored, and workers who pick-up or deliver food items may qualify for paid sick leave.
Exceptions for Employers Who Provided Comparable Benefits
Under certain circumstances, employers who have already provided covered employees with a comparable supplemental paid sick leave benefit can count the number of hours previously provided towards the total number of hours of COVID-19 supplemental sick leave that the employer is required to provide under the law. The supplemental paid leave previously provided must have been equal to or greater than the amount the employee would be entitled to under the new law and must have been payable for one of the three qualifying reasons listed above.
Employers may not require an employee to use any other paid or unpaid leave, paid time off, or vacation time before the employee can use COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.
Some of the administrative questions surrounding the implementation of supplemental paid leave provided for by this new law remain unanswered. Notably, it is unclear what kind of verification, if any, an employer can ask of an employee who is requesting leave. The text of the law instructs employers to make COVID-19 supplemental paid sick leave available for “immediate use by the covered worker, upon the oral or written request of the worker,” seemingly suggesting that employers cannot ask for documentation in advance of approving a request.
What type of post-March 2020 paid leave programs qualify for purposes of the credit is also unclear. For example, what happens if the employer’s program was informal and not publicized? What if the employer allowed its employees to borrow against future unaccrued vacation or the employer waived eligibility criteria which allowed employees immediate access to extended sick leave banks?