On September 9, 2020, Governor Gavin Newsom signed into law Assembly Bill (AB) 1867.  The sweeping legislation addresses a range of employment topics from paid sick leave for certain employees related to COVID-19 and food sector handwashing requirements to a potential pre-litigation mediation program.

Provisions Related to COVID-19 Paid Sick Leave

With the addition of Labor Code sections 248 and 248.1 and the amendment of Labor Code section 248.5, AB 1867 expands California’s paid sick leave requirements to include additional paid time off for certain needs related to COVID-19.  Specifically, these provisions apply to food sector employees, certain health care provider and emergency responder employees, and all employees of large employers, i.e., employers with 500 or more employees.

Under existing California law that went into effect in 2015, Labor Code section 246 requires all employers to provide paid sick leave to employees who work in California in specific amounts depending upon accrual method.  In addition, under federal law enacted in March 2020 as a result of the COVID-19 pandemic, employers with fewer than 500 employees must provide up to 80 hours of paid sick leave to employees for specific COVID-19 reasons pursuant to the federal Families First Coronavirus Response Act (FFCRA).  In April 2020, Governor Newsom issued Executive Order N-51-20, which effectively extended certain COVID-19 paid sick leave provisions envisioned by the FFCRA to California food sector employees of larger employers.

With the new legislation signed into law last week, AB 1867 codifies many of the food sector paid sick leave provisions of Executive Order N-51-20, with some variations, and provides paid sick leave for specified COVID-19 reasons to employees of all California employers with 500 or more employees.  In addition, the legislation fills another gap left by the FFCRA, by requiring paid sick leave to be provided by public and private employers of health care providers and emergency responders who elected not to provide leave under that Act.

AB 1867 applies to employees who leave their homes or residences to perform work for a covered employer and are unable to work because they are: (1) subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; and/or (3) prohibited from working by the covered employer due to health concerns related to the potential transmission of COVID-19.

Eligible employees receive up to 80 hours of supplemental paid sick leave for these reasons, depending on their full or part-time status, based on their worked or scheduled hours before they began leave.  Leave is paid at the greater of the employee’s regular rate of pay for the last pay period (including pursuant to any collective bargaining agreement that applies), the state minimum wage, or the local minimum wage.  Notwithstanding the foregoing, active firefighters who were scheduled to work more than 80 hours in the two weeks preceding the date of leave are entitled to an amount of paid sick leave equal to the total number of hours they were scheduled to work in those two preceding weeks and to be paid their regular rate of pay to which they would be entitled if they had been scheduled to work those hours.  In all cases, the amount paid shall not exceed $511 per day and $5,110 total.

If an employer already provides a covered employee with a supplemental benefit, such as supplemental paid leave, that is payable for the reasons covered by AB 1867 and would compensate the employee in an amount equal to or greater than the amount of compensation under the legislation, the employer may apply the hours of the other paid benefit toward the total amount required.  Employers cannot include paid sick leave under Section 246 toward this amount, but may include amounts provided pursuant to Executive Order N-51-20 or other paid time off provided pursuant to federal or local law for the same reasons set forth in the legislation.  In addition, with regard to paid sick leave provided to health care providers, emergency responders, and employees of large employers under Labor Code section 248.1, if an employer already provided supplemental paid time off on or after March 4, 2020 for the same reasons provided by the legislation, but did not compensate the employee in an amount equal to or greater than the amount required, the employer may retroactively provide supplemental pay to the employee to satisfy the compensation and count those hours toward the total required by Labor Code section 248.1.

Employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before using paid sick leave under AB 1867 or in lieu of providing it.

AB 1867’s supplemental paid sick leave for food sector employees is available immediately, and applies retroactively to April 16, 2020.  The provisions applicable to other employees take effect not later than 10 days after the date of enactment of Labor Code section 248.  All provisions expire on December 31, 2020, or upon the expiration of any federal extension of the emergency paid sick leave provisions of the FFCRA, whichever is later, except that covered employees taking paid sick leave for COVID-19 reasons at the time of the law’s expiration shall be permitted to take the full amount of leave to which the employees otherwise would have been entitled.

Because the Labor Commissioner may enforce Labor Code section 246.5(i) as it relates to paid sick leave provided to health care providers, emergency responders, and employees of large employers under Labor Code section 248.1, employers must provide these employees with written notice that sets forth the amount of paid sick leave available on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. Although Labor Code section 248 does not specifically require this for paid sick leave provided to food sector employees, employers should nevertheless consider doing so.  Paid sick leave available under AB 1867 should be tracked as a separate line item, with appropriate offsets for paid time off already provided which satisfies the requirements of the legislation.

Within seven days after the effective date of the legislation, the Labor Commissioner shall make publicly available a model notice regarding the provision of paid sick leave. Only for purposes of COVID-19 supplemental paid sick leave, if the employer’s covered employees do not frequent a workplace, the employer’s obligation to provide such notice may be satisfied by disseminating notice through electronic means, such as by email.

Provisions Related to Handwashing Frequency for Food Sector Employees

With the addition of Health and Safety Code section 113963, AB 1867 also provides that employees working in any food facility must be permitted to wash their hands every 30 minutes and additionally as needed.  This codifies a provision in Governor Newsom’s August 2020 Executive Order N-51-20, with some variation.  A “food facility” means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including operations where food is consumed on or off the premises, regardless of whether there is a charge for the food, as well as places used in conjunction with such operations, including, but not limited to, storage facilities for food-related utensils, equipment, and materials.  Specific operations are further outlined in Health and Safety Code section 113952.

Provisions Related to Mediation Pilot Program for Small Employers for Allegations Related to Family and Medical Leave

AB 1867 also adds Government Code section 12945.21 and directs the Department of Fair Employment and Housing (DFEH) to create a mediation pilot program to address disputes against employers with five to 19 employees alleging violation of family and medical leave provisions under the California Family Rights Act (CFRA).  This provision of AB 1867 is dependent upon the enactment of Senate Bill (SB) 1383, which was presented to Governor Newsom on September 8, 2020, and is awaiting his review and signature.  For this provision of AB 1867 to become operative, SB 1383 must be passed into law and take effect on or before January 1, 2021.

If that happens, SB 1383 would expand the provisions of CFRA relating to family and medical leave to employers with as few as five employees and would further expand the reasons for leave and types of leave covered by the CFRA.  In addition, AB 1867 would make employers of five to 19 employees eligible to take part in a mediation pilot program created by the DFEH to address allegations involving violation of the CFRA’s family and medical leave provisions.

Under existing law, before filing a civil lawsuit alleging violation of the CFRA, current and former employees must first file an administrative complaint with the DFEH and obtain a right-to-sue notice from the Department.  Under AB 1867’s mediation pilot program, either the employer or employee may request all parties to participate in the DFEH’s dispute resolution program within 30 days after receipt of the right-to-sue notice, which will include information about the parties’ right to do so.  If either party requests participation in the program, the employee will be prohibited from pursuing a civil action alleging violation of the CFRA provisions until the mediation is complete.  The DFEH must initiate the mediation “promptly following the request,” and the employee’s statute of limitations for the CFRA allegations and “all related claims” will be tolled until the mediation is complete.  Government Code section 12945.21 includes a sunset provision and will be repealed on January 1, 2024.

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