New California COVID-19 Paid Sick Leave Mandate

On September 9, 2020, California enacted a new law that goes into effect on September 19, 2020 and will be in effect until December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act, whichever is later. Under the new law, “hiring entities” (defined below) must provide supplemental COVID-19 paid sick leave to “covered workers” (defined below) in addition to any paid sick leave that hiring entities must provide to workers under California’s Health Workplace Healthy Family Act of 2014 (i.e., requiring a 24-hours minimum of paid sick leave).

Who must provide the supplemental COVID-19 paid sick leave:

“Hiring entities” means either of the following two categories of entities:

  1. A private business that has 500 or more employees in the United States OR
  2. A private or public entity that: (a) employs health care providers or emergency responders and (b) that has elected to exclude such employees from emergency paid sick leave under the federal Families First Coronavirus Response Act (“FFCRA”). (To be clear, this alternative definition of a hired entity applies to employers that are subject to the FFCRA (i.e., have fewer than 500 employees) and elected to exclude health care employees and emergency responders from the FFCRA’s requirement to provide supplemental COVID-19 emergency paid sick leave.)

*There is no exception for unionized workforces with a collective bargaining agreement providing for paid sick leave.

“Covered workers” to be eligible a person must be employed by one of the two categories of hiring entities listed above and must be a person who leaves home or other place of residence to perform work. Individuals who do not leave their residence to work for their employer are not eligible. Excluded from covered workers are food sector workers, who are instead provided supplemental COVID-19 paid sick leave under Labor Code section 248.

Amount of Leave

The amount of leave an employee is entitled to under the new law fits into three categories.

  1. Full-Time: A covered worker is entitled to up to 80 hours of paid leave if the hiring entity considers the worker “full-time” or if it scheduled the covered worker to work, on average, at least 40 hours per week in the two weeks preceding the request for leave.
  2. Part-Time: Covered workers that are not full-time are entitled to leave based on the covered worker’s schedule as follows:
    1. Set Schedule: A covered worker with a normal weekly schedule is entitled to leave that amounts to the total number of hours the covered worker is normally scheduled to work for the hiring entity over two weeks.
    2. Variable Schedule: A covered worker who works a variable number of hours is entitled to leave that amounts to 14 times the average number of hours the covered worker worked each day for the hiring entity in the six months preceding the date the covered worker took Covid-19 Paid Sick Leave.
  3. Firefighter: A covered worker who is an active firefighter who was scheduled to work more than 80 hours for the hiring entity in the preceding two weeks is entitled to an amount of paid sick leave equal to the total number of hours that the covered worker was scheduled to work for the hiring entity in those two preceding weeks.

Exceptions

  • If a hiring entity already provides a covered worker with supplemental paid leave for the reasons listed below that is equal or greater in value to this requirement, then the hiring entity may count the hours of the other paid benefit or leave towards the total number of hours of the supplemental paid sick leave that the hiring entity is required to provide to the covered worker under this new law.
  • Hiring entities that have already provided another form of supplemental paid leave between March 4, 2020, and the effective date (September 19, 2020) of the new law for the specified reasons, may retroactively provide pay to the covered worker to satisfy the compensation requirements under the new law, in which case those hours will count towards the total number of required supplemental COVID-19 paid sick leave hours.

Wage Statement & Record Retention Requirement

Hiring entities are required to provide written notice to covered workers concerning the amount of the paid sick leave provided. This can be done using an itemized wage statement or in a separate writing provided to the worker(s) on designated pay dates. The employer must also retain a record of hours worked, leave provided, and leave used by employee(s) for three years. 

Rate of Pay

Each hour of COVID-19 supplemental paid sick leave must be paid at the rate equal to the highest of the following: (1) the covered worker’s regular rate of pay; (2) the state minimum wage; or (3) the local minimum wage to which the covered worker is entitled.

Notwithstanding the above, a hiring entity is not required to pay more than $511 per day and $5,110 total to a covered worker for COVID-19 supplemental paid sick leave taken by the worker.

Qualifying reasons for taking COVID-19 supplemental paid sick leave

To be eligible, the worker must be unable to work because:

  • He/she is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • A health care provider has advised him/her to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • The hiring entity prohibited him/her from working due to health concerns related to the potential transmission of COVID-19.

Penalties for Noncompliance

The Labor Commissioner is authorized to enforce this new law. Hiring entities may be liable for the following administrative penalties for failing to comply:

  • The dollar amount of paid sick days unlawfully withheld from the employee multiplied by three, or $250, whichever amount is greater, up to $4,000 total; and
  • $50 per day, or portion thereof, up to $4,000, if an employee is discharged or if a violation of the new law results in other harm to the employee.
  • The Labor Commissioner is authorized to pursue civil action against non-compliant hiring entities and seek penalties of up to $50 per day for each employee or person whose rights were violated.
  • Entities may be subject to penalties for failing to include the balance of the supplemental COVID-19 paid sick leave available on the covered worker’s wage statements.

California hiring entities should immediately update their paid sick leave policies to be in compliance. Hiring entities should also post/display the new paid sick leave poster where employees can easily read it. If employees do not frequent a physical workplace, it may be disseminated to employees electronically. This legal update is not intended to be legal advice. Please contact our office so we can assist you to comply with this new law.

Written By Landegger Baron Law Group APC:
Kristina Kourasis, Esq.
Alysha Zapata, Esq.
Rodrigo J. Torres, Esq.

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