California Grants Additional Supplemental Paid Sick Leave
Governor Newsom signed Assembly Bill 1867 on September 09, 2020 (effective September 19, 2020) granting additional paid sick leave for many California workers. In March of 2020, the Families First Coronavirus Response Act (“FFCRA”) was signed by the President to provide additional pay for an employee off work due to COVID-19. The FFCRA targeted employers with less than 500 employees. Assembly Bill 1867, which has many similar provisions as FFCRA, applies to California workers if the hiring entity has more than 500 employees nationwide.
Supplemental Paid Sick Leave FAQ
Which employers does this Supplemental Sick Leave apply to?
All private sector employers that have more than 500 workers nationwide (regardless of FT or PT status). This regulation would only apply to those employees who work in California. The supplemental paid sick leave must be available for employee use through December 31, 2020.
Is there an exception for employers with more than 500 workers nationwide?
There is an exception for private sector employers that have more than 500 workers nationwide if they have already provided workers with equivalent paid sick time (excluding those requirements under labor code section 246) from March 04, 2020 through the effective date of this bill. Essentially, if a company elected to pay workers for missed time from work due to a qualifying reason, you can count those hours towards your requirement under the supplemental paid sick leave law. If you feel this may apply to your company, contact the experts at McKague Rosasco LLP to confirm whether all criteria are met.
In addition, food sector employers who are already subject to Executive Order N-51-20 are not required to provide the supplemental paid sick leave in addition to paid sick leave provided under E.O. N-51-20. Labor Code section 248 was added to codify the executive order. This law is in effect until December 31, 2020 whereas E.O. N-51-20 had no end date. Furthermore, Labor Code section 248 expanded the definition of food sector employer to include the entire section of California Health and Safety Code section 113789 to clear up any ambiguity.
Which employees does this Supplemental Sick Leave apply to?
Any employee (regardless if PT or FT status) who cannot work due to the following:
(i) An employee is subject to a federal, state, or local coronavirus quarantine or isolation order.
(ii) An employee who has been advised by a health care provider to self-quarantine or self-isolate due to coronavirus concerns.
(iii) An employer prohibits an employee from working due to health concerns related to potential transmission of the coronavirus.
How many hours of sick leave are employees entitled to under the Emergency Sick Leave?
Full-time employees are to receive 80 hours (10 days) of sick leave. A full-time employee is entitled to 80 hours of supplemental paid sick leave if the employee’s entity considers the employee full-time or if the employee worked an average of at least 80 hours for the two weeks preceding the need for leave.
Part-time employees are entitled to their normal average hours of work per week. Part-time employees who are variable-hour employees should be paid 14x the average number of hours the part-time employee worked each day for the six months preceding the use of the supplemental paid sick leave. If the employee has not worked for a 6-month period, then the part-time employee should be paid 14x the average number of hours the part-time employee worked each day for the employer since being hired.
Is there a cap on how much the company must pay employees for Supplemental Sick Leave?
Workers taking leave will have to be paid at a rate equal to the highest of the following:
the covered worker’s regular rate of pay for the covered worker’s last pay period; the state minimum wage; or the local minimum wage to which the covered worker is entitled. Supplemental paid sick leave pay is capped at $511 per day and $5,110 in the aggregate. Therefore, you should be paying an employee 100% of their wages unless an employee’s wages exceed $511 per day.
How long must the employee work for the employer to be eligible for Supplemental Paid Sick Leave?
The sick leave for FT or PT must be available for immediate use regardless of the employee’s tenure with the employer.
May I require an employee to exhaust other paid sick leave prior to using this Emergency Sick Leave?
No, if the employee is taking the supplemental sick leave for a qualifying reason noted above, the employer cannot require the employee to exhaust other available sick leave first.
Does this supplemental sick leave replace California Paid Sick Leave?
No, employers are required to provide both types of sick leave to employees. Once an employee exhausts the supplemental sick leave for qualifying reasons, they may be able to use other forms of paid leave.
Can I require a medical note for employees to use the Supplemental Leave?
The bill does not state that this is permitted or restricted. We do not recommend employers request a note, but if you feel there is fraud occurring please contact our law firm.
How will my employees be notified of this available benefit?
The employer is required to provide the employee with written notice of the worker’s available supplemental paid sick leave as either or a separate writing provided on the employee’s payday, or on the employee’s wage statement. In addition, the employer is required to post a notice in the workplace. The Labor Commissioner is creating a model notice for Employer use within 7-days of the effective date if this bill.
Conclusion
With only days left before this law goes into effect, employers should evaluate the total size of its workforce to determine if the new law applies. If so, employers should immediately work with its payroll company/software to add the additional line item to eligible employee’s paystubs and ensure to post the required notice. If you have any questions on how to implement this new law, do not hesitate to contact the experts at McKague Rosasco, LLP.
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