Last week, California enacted a law, Assembly Bill (AB) 1867, providing supplemental COVID-19-related sick leave to food-sector workers and workers employed by a company with 500 or more employees nationwide. The law requires employers of such employees to provide sick leave – in addition to any other leave the employee may be entitled to – for the following three situations:

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

How Much Leave?

The number of hours of supplemental sick leave an employee is entitled to depends on the number of hours the employee has been working:

  • If the employee has been working at least 40 hours per week in the two weeks prior to taking the COVID-19 leave, the employee is entitled to 80 hours of supplemental sick leave.
  • If the employee works fewer than 40 hours per week but works a normal weekly schedule, the employee is entitled to an amount of supplemental sick leave equal to the number of hours the employee normally works over two weeks.
  • If the employee works fewer than 40 hours per week but works a variable number of hours, the employee is entitled to an amount of supplemental sick leave equal to 14 times the average number of hours the employee has worked per day over the six months prior to the date the employee takes the COVID-19 leave.

Rate of Pay

The employee’s sick leave must be paid out at the rate equal to the highest of the following:

  1. The employee’s regular rate of pay for the covered worker’s last pay period, including pursuant to any collective bargaining agreement that applies.
  2. The state minimum wage.
  3. The local minimum wage to which the employee is entitled.

The total amount of leave paid out, however, is capped at $511 per day and $5,110 total.

Notice to Employees

Employers are required to provide employees notice of the law. The California labor commissioner will make a model notice available, and employers may disseminate the notice electronically.

Effective Date of the Law

For food-sector workers, the law applies retroactively to April 16, 2020. The law expires Dec. 31, 2020, unless Congress extends the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act to a later date.

Exceptions to the Law

Supplemental sick leave that was already provided by the employer for COVID-19-related reasons listed in AB 1867 and paid at the required rate or at a greater rate can be deducted from the employee’s eligible amount of leave under AB 1876. This would include any supplemental COVID-19-related sick leave provided to food-sector workers under the governor’s Executive Order N-51-20, issued April 16, 2020. An employer may not, however, require employees to utilize other kinds of leave in lieu of the supplemental COVID-19 leave.

Other Provision of AB 1867

While this update focuses on the expansion of sick leave, AB 1867 also requires California’s Department of Fair Employment and Housing to create a small-employer family leave mediation pilot program that would prohibit an employee from pursuing civil action if an eligible employer or employee requests mediation. The statute of limitations is tolled for the employee until the mediation is complete. Small employers are those with between five and 19 employees.

AB 1867 also codifies existing hand-washing guidance by providing that employees working in any food facility be permitted to wash their hands every 30 minutes and additionally as needed.