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California Employers With More Than 500 Employees Must Now Provide Supplemental COVID-19 Paid Sick Leave To Employees - AB 1867

By Procopio Senior Associate Brook T. Barnes

California private employers with 500 or more U.S. employees are now required to provide supplemental paid sick leave to its California employees for specified reasons related to COVID-19. AB 1867 took effect September 19, 2020, and is intended to provide sick leave coverage for employees excluded from the protections of the federal Families First Coronavirus Response Act (“FFCRA”). However, its short notice for compliance has caught many California employers off guard. 

Under the new law, employees who must leave their home to perform work are entitled to the supplemental paid sick leave if the employees are hindered from attending work because they are:

  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; or
  3. Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Eligible employees may determine the amount of supplemental paid sick leave they need by simply making an oral or written request. No physician’s note is required. Eligible employees will receive an hourly rate of the greater of: (1) the regular rate of pay for the last pay period ; (2) California’s minimum wage; or (3) local minimum wage. Employers may cap the supplemental sick pay at $511 per day and $5,110 total.

Importantly, employers may not require the employee to use PTO, vacation time, or other sick leave before requesting supplemental paid sick leave. The new law specifically states that existing sick leave under Labor Code 246 is in addition to the new supplemental paid sick leave, so employers must create new sick leave banks for the supplemental leave.

There are two important notice requirements that employers must comply with immediately. 

  • First, employers must provide the notice issued by the Division of Labor Standards Enforcement (“DLSE” or “Labor Commissioner”) to all impacted employees.  The DLSE has provided a sample notice that can be accessed here.
  • Second, employers must update their wage statements to include the amount of paid sick leave available under the new law. This requirement is more stringent than previously required under Labor Code 246, which permits employers to use a separate writing or an itemized wage statement.  Impacted employers should immediately audit their payroll practices.

The Labor Commissioner has also provided FAQs on the supplemental paid sick leave. 

For public and private employers of first responders and health care employees who opted not to provide paid sick leave under the FFCRA, they are now required to provide supplemental paid sick leave under this new California law. The new law expires on December 31, 2020, or upon the expiration of any extension of the FFCRA. 

Employers who fail to comply with the new law are subject to civil penalties not to exceed $4,000. If a violation of the new law results in other harm to the employee, such as termination of employment, the penalty includes a sum of $50 for each day a violation occurred, not to exceed $4,000. In addition, the Labor Commissioner may bring a civil action against any employer on behalf of the aggrieved employee for violating the new law and seek relief including reinstatement, back pay, payment of unpaid sick leave, liquidated damages, penalties, injunctive relief, reasonable attorney’s fees and costs, and interest.

If you have questions about this new law, please contact Brook T. Barnes at 619.525.3810 or brook.barnes@procopio.com, or any member of the firm’s Labor and Employment Law Group.

Brook Taylor Barnes is a Senior Associate in Procopio’s Labor & Employment Law practice group. He represents employers in all aspects of labor and employment litigation including claims for improper wage deductions, failure to pay wages, failure to pay overtime wages, failure to provide meal periods and rest breaks, misclassification of employees, inaccurate wage statements, commission calculations, wrongful termination, Private Attorney General Act (“PAGA”) claims, class actions, and retaliatory and discriminatory employment actions.