Assembly Bill 1867 Provides Statutory Entitlement to “COVID-19 Supplemental Paid Sick Leave” to Public Employees Exempted from Receipt of Leave Benefits under the Families First Coronavirus Response Act (“FFCRA”)

Category: Special Bulletins
Date: Sep 10, 2020 10:59 AM

On September 9, 2020, Governor Gavin Newsom signed Assembly Bill (“AB”) 1867 into law. This bill 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”). 

As a budget trailer bill, this bill became law immediately upon the Governor’s signature.  However, Section 248.1 notes that this COVID-19 Supplemental Paid Sick Leave shall take effect not later than 10 days after the enactment of this section.  Therefore, this new COVID-19 Supplemental Paid Sick Leave will become effective no later than September 19, 2020.

If your agency utilized the discretionary authority provided under the FFCRA to exempt either “emergency responders” or “health care providers” from receipt of EPSL and did not provide a comparable contractual benefit to such employees, your agency must now provide those benefits to such employees under the Labor Code, where qualified.

Qualifying Conditions for Receipt of COVID-19 Supplemental Paid Sick Leave

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 this COVID-19 Supplemental Paid Sick Leave if the employee is unable to work for any of the following three (3) reasons that are generally modeled after the EPSL:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  3. The employee is prohibited from working by the employer due to concerns related to the potential transmission of COVID-19.

For employers familiar with the qualifying conditions for the receipt and use of EPSL, the first two qualifying conditions under AB 1867 mirror those provided for under the FFCRA. (See 29 C.F.R. § 826.20 (i) and (ii).)

The third qualifying condition enumerated above differs from any qualifying condition for EPSL provided under the FFCRA, and would allow an employee to qualify for COVID-19 Supplemental Paid Sick Leave if the employer directs the employee to not report to work for reasons related to COVID-19. In practice, this qualifying condition will most likely apply where an employee has had “close contact” exposure to someone who has COVID-19, but remains asymptomatic after such exposure. According to public health guidance, even with the absence of any symptoms associated with COVID-19, the employer should direct such employee to self-quarantine for up to 14 days following the “close contact” exposure due to the risk of asymptomatic or presymptomatic transmission of COVID-19. In such event, the affected “emergency responder” or “health care provider” employee would qualify for COVID-19 Supplemental Paid Sick Leave because the employer is prohibiting the employee from working due to concerns about the employee’s to the potential transmission of COVID-19 to other employees.

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 “emergency responder” or “health care provider” employee is either:

(1)    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

(2)    caring for their son or daughter whose school or place of child care is closed for reasons related to COVID-19.

(Compare to 29 C.F.R. § 826.20 (iv) and (v), which provides for leave and compensation to employees under such circumstances.)

Benefits under COVID-19 Supplemental Paid Sick Leave

(1)    Amount of 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 amount of hours that is 14 times their average daily schedule as determined by hours worked over the preceding six month period.

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. Therefore, under certain circumstances, a firefighter exempted from receipt of EPSL under the FFCRA may actually qualify to receive more than 80 hours of COVID-19 Supplemental Paid Sick Leave.

Employers should note that 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 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.  

(2)    Compensation for Leave

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. 

(3)    Public Employers that Provided Alternative Contractual Benefit to Exempted Employees

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.

(4)    Expiration for Such Benefits

The 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.

Our firm has attorneys familiar with AB 1867 should you or your agency have any questions about AB 1867 or its potential effects on your agency’s leave policies and practices.

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