By Heather Sager, Jill Ripke, Lauren Kulpa, Brittany Sachs, and Matthew Goldberg

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, which mandated paid COVID-19–related sick leave for food sector workers who provide services to an entity with 500 or more employees nationwide. The Executive Order was noteworthy because the eligibility for leave was not dependent on employee status—contractors were deemed eligible as well.

Last week, Governor Newsom signed Assembly Bill 1867 (AB 1867), which codified the preexisting supplemental COVID-19 paid sick leave for food sector workers and related handwashing requirements and amended enforcement provisions for violations of paid sick leave requirements.[1]

Specifically, AB 1867 adds Section 248 to California’s Labor Code, retroactive to Executive Order N-51-20, and Section 248.1, effective “not later than 10 days after enactment.” Section 248 does not impose new paid leave requirements; paid leave already being provided pursuant to the Executive Order, federal, or local law will suffice. Section 248.1 adds additional requirements for COVID-19–related paid sick leave for entities with 500 or more employees nationwide and for entities that employ health care providers or emergency responders that the entity has excluded from coverage under the federal Families First Coronavirus Response Act (FFCRA). A summary of these leave obligations follows:

  • Coverage is for workers who must leave home to perform work for the hiring entity, excluding those who work in the food production and agriculture industries, for hiring entities that operate food facilities, or who deliver food;
  • Eligibility for up to 80 hours of COVID-19 supplemental paid sick leave for all “full time” workers (scheduled to work at least 40 hours/week in the two weeks prior to the date leave began);
  • Workers who are not “full time” are entitled to (1) 14 times the average hours worked each day in the six months preceding leave, (2) if employed for 14 days or less prior to leave, total number of hours worked, or (3) total number of hours regularly scheduled for a two-week period;
  • “Active firefighters” scheduled to work more than 80 hours for the hiring entity in the two weeks before the date the worker took leave are entitled to an amount of COVID-19 supplemental paid sick leave that is equal to the total number of hours they were scheduled to work in those preceding two weeks;
  • The total number of hours of COVID-19 supplemental paid sick leave for a covered worker are in addition to paid sick leave available under California’s existing paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014);
  • No waiting period before workers are eligible to use COVID-19 supplemental paid sick leave;
  • Applicable pay rate for COVID-19 supplemental paid sick leave is the rate used in the pay period immediately prior to leave, or state or local minimum wage, whichever is higher; as with the FFCRA, pay is capped at $511 per day, or $5,110 overall (representing a presumed maximum of 10 days—80 hours—of leave);
  • Payment for leave will not be deemed late as long as it is made by the next regular payroll after leave is taken;
  • Additional requirement that businesses allow covered workers in food facilities to wash their hands every 30 minutes, and additionally as needed;
  • Businesses must “post” notice of rights (can be done via email if workers do not frequent a workplace);
  • Businesses must keep records for at least three years documenting the hours worked and paid sick days accrued and used by an employee;
  • Incorporates the existing California standard for sick leave that paystubs must include written notice of the amount of paid COVID-19 supplemental paid sick leave available; and
  • No exception for unionized workforces.

The new Labor Code sections established by AB 1867 incorporate existing prohibitions against discrimination or retaliation against workers who utilize paid sick leave, including the rebuttable presumption of retaliation if a leave request is denied or a worker suffers an adverse employment action within 30 days of filing a charge or participating in an investigation related to any alleged violation.

It remains the case that if a business already provides covered workers with comparable leave benefits, they are not required to provide additional leave. However, businesses should ensure their previously provided benefits meet the pay and duration requirements now codified in Sections 248 and 248.1, as verbiage in Section 248.1 requires businesses to issue retroactive pay to employees who took leave prior to AB 1867’s enactment but were not paid at the rate now established in the Labor Code. The new legislation also enhances the state’s enforcement powers and establishes penalties, so now is a perfect time for businesses to assess and plan for compliance.

[1] AB 1867 also includes a provision establishing a mediation program for small employer family leave issues, although the program is contingent on the passage of proposed legislation (Senate Bill 1383) requiring that employers with more than five employees provide unpaid family leave under the existing California Family Rights Act.