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AB 1867 – Provides “COVID-19 Supplemental Paid Sick Leave” To Public Employees Exempted From The Federal Families First Coronavirus Response Act’s (FFCRA) Emergency Paid Sick Leave (EPSL) Benefits for Public Educational Institutions
AB1867 adds Labor Code Section 248.1, which provides up to 80 hours of COVID-19 related supplemental paid sick leave (COVID-19 Supplemental Paid Sick Leave) for “emergency responder” and “health care provider” employees exempted from the Emergency Paid Sick Leave (EPSL) benefits under the Families First Coronavirus Response Act (FFCRA).
In addition to providing COVID-19 supplemental sick leave to “emergency responders” and “health care providers,” AB 1867 also provides this leave to private-sector employers with 500 or more employers, who were also excluded from the federal law, and codifies the governor’s previously-issued executive order (No. N-51-20) providing similar paid leave and handwashing requirements for food sector workers.
AB 1867 also establishes a separate small employer family leave mediation pilot program for smaller employers who are now subject to the California Family Rights Act (CFRA) based on its expansion under SB 1383. We have included a summary of this part of the bill as part of the summary of SB 1383 below.
As a budget trailer bill, this bill became law immediately upon the Governor’s signature on September 9, 2020, and its supplemental paid sick leave provisions became effective 10 days later on September 19, 2020.
Qualifying Conditions for Receipt of COVID-19 Supplemental Paid Sick Leave
As applied to public employers, this new Labor Code Section 248.1 entitles “emergency responder” and “health care provider” employees who have been exempted from the FFCRA’s EPSL paid sick leave benefits to instead receive COVID-19 Supplemental Paid Sick Leave if the employee is unable to work for any of the following three (3) reasons, which are generally modeled after the EPSL:
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; or
The employee is prohibited from working by the employer due to concerns related to the potential transmission of COVID-19.
The first two qualifying conditions under AB 1867 mirror those provided for EPSL under the FFCRA. The third qualifying condition is slightly different from any qualifying condition for EPSL provided under the FFCRA and would allow a covered employee to qualify for COVID-19 Supplemental Paid Sick Leave if the employer directs the employee not to report to work for reasons related to COVID-19.
Importantly, the COVID-19 Supplemental Paid Sick Leave does not provide any statutory entitlement to supplemental paid sick leave for the other EPSL-related reasons under the FFCRA where the affected employee is either:
Caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine; or
Caring for their son or daughter whose school or place of child care is closed for reasons related to COVID-19.
Benefits under COVID-19 Supplemental Paid Sick Leave
Just as with EPSL, employees who qualify to receive COVID-19 Supplemental Paid Sick Leave will be entitled to up to 80 hours of such paid leave if they are full-time employees and work at least 40 hours per week. Part-time employees will be entitled to a prorated amount of such leave based on their normally scheduled work hours over a two-week period. However, if the part-time employee does not have a normal work schedule, the paid sick leave entitlement will be based on the number of hours that is 14 times their average daily schedule as determined by hours worked over the preceding six month period. In the same manner, as EPSL, employees who qualify to receive COVID-19 Supplemental Paid Sick Leave will be compensated for each hour of such leave at their “regular rate of pay” up to $511 per day and $5,110 in the aggregate.
For active-duty firefighters who were scheduled to work more than 80 hours in the two weeks preceding the date upon which the employee took COVID-19 Supplemental Paid Sick Leave, AB 1867 provides that such employees will be entitled to COVID-19 Supplemental Paid Sick Leave equal to the total number of hours that the individual was scheduled to work in the preceding two weeks. However, the same paid compensation limits of $511/day and $5,110 in the aggregate still apply.
AB 1867 expressly provides that COVID-19 Supplemental Paid Sick Leave is to supplement, and not run concurrent to, paid sick leave entitlements provided to employees under the Paid Sick Leave Law (Labor Code Section 246). Therefore, where an employee qualifies for COVID-19 Supplemental Paid Sick Leave, the employer should not reduce the amount of other statutory paid sick leave that the employee earned or accrued under Labor Code Section 246 or by the employer’s alternative accrual methodology.
Some employers exempted “emergency responders” and/or “health care providers” from receiving EPSL under the FFCRA, but then provided the exempted employees a comparable benefit to leave and compensation by contractual agreement. For such employers, AB 1867 expressly provides that the employer may attribute the supplemental benefits provided under that agreement for the purpose of satisfying the requirements of Labor Code Section 248.1.
For employers that provided leave for such qualifying conditions, but not compensation, AB 1867 provides that such employers may retroactively provide for such compensation now in order to satisfy their obligations to provide employees both leave and compensation.
The supplemental paid sick leave benefits provided under AB 1867 expire on December 31, 2020, or the date of expiration for the benefits provided under the Emergency Paid Sick Leave Act should the federal government extend such benefits, whichever is later.
(AB 1867 adds Section 12945.21 to the Government Code, adds Section 113963 to the Health and Safety Code, adds Sections 248 and 248.1 to the Labor Code, and amends Section 248.5 of the Labor Code.)