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30 September 2020
Employers with more than 500 employees nationally, and employers of healthcare providers and emergency responders previously exempted from the Families First Coronavirus Response Act (FFCRA) requirements, must provide Californian employees with two weeks' supplemental paid sick leave for specified COVID-19 reasons. In addition to providing paid leave, the law requires employers to comply with urgent notice and posting requirements that are administratively burdensome. Employers subject to the new requirements should work with legal counsel to develop practical solutions for immediate compliance.
On 9 September 2020 California Governor Gavin Newsom signed into law Assembly Bill 1867, the California COVID-19 Supplemental Paid Sick Leave Act, which created the new Sections 248 (food service workers) and 248.1 (covered workers) of the Labour Code and amended Section 248.5 (paid sick days) of the Labour Code. The new law aims to bridge the gap between the FFCRA, which applied only to employers with fewer than 500 employees, and Executive Order N-51-20, which provided leave only to food sector workers.
Effective immediately, employers with more than 500 employees nationally, and employers of healthcare providers and emergency responders previously exempted from FFCRA requirements, had to make California supplemental paid sick leave available to all employees by 19 September 2020.
To be eligible for supplemental paid sick leave, employees must have to leave their home to perform their job and be unable to work because they:
Full-time employees are entitled to two weeks' (80 hours') supplemental paid sick leave, while part-time employees may have variable entitlements depending on their past schedules and hours worked. The applicable rate of pay for supplemental paid sick leave is the highest of the employee's regular rate of pay, the state minimum wage or the local minimum wage. However, supplemental paid sick leave is capped at $511 per day and $5,110 total per employee.
Employees are entitled to supplemental paid sick leave under the new law in addition to any paid sick leave made available to them under an employer's existing non-COVID-19-related paid sick leave policies. Further, employers cannot require that employees exhaust other available types of leave prior to using their California supplemental paid sick leave entitlement. However, if an employer has already established some type of COVID-19 supplemental leave, it can be credited towards such leave established by the California COVID-19 Supplemental Paid Sick Leave Act.
The law contains immediate notice and posting requirements, which include a poster that had to be made available to employees by 19 September 2020, as well as mandatory printing of the amount of available California COVID-19 supplemental paid sick leave balances on employees' wage statements by the next pay period following 9 September 2020. The California labour commissioner has provided a model poster for employers' use (available here).
The act expressly authorises the labour commissioner to enforce its requirements, including investigating violations and ordering temporary relief to mitigate violations. If COVID-19 supplemental paid sick leave is unlawfully withheld, employers may be subject to an administrative penalty of at least $250 per day – a penalty not to exceed $4,000 in the aggregate. The state labour commissioner or attorney general may also bring civil action to collect other legal or equitable relief, including:
While there is no private right of action under the new law, employees may also be able to assert Private Attorney General Act claims for violations of the new law.
For further information on this topic please contact Marjorie Clara Soto at McDermott Will & Emery by telephone (+1 310 277 4110) or email (firstname.lastname@example.org). The McDermott Will & Emery website can be accessed at www.mwe.com.
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