COVID-19: New Federal PSL and Expanded FMLA

  • On March 18, 2020, President Trump signed emergency relief legislation known as the Families First Coronavirus Response Act (FFCRA). Passed because of the escalating coronavirus (also known as COVID-19) situation, the FFCRA creates expanded employee benefits and protections related to COVID-19, including a new federal paid sick leave law and an emergency expansion of the Family and Medical Leave Act (FMLA).

Read about 2020 legislation and recently issued guidance.

The FFCRA is only one of many measures that federal, state and local governments are taking to address COVID-19. Employers can expect ongoing developments at all levels of government over the coming weeks and months. Employers should continue to consult regularly with their legal counsel on how to address this new complicated federal framework in addition to the already existing leave laws in the context of their specific circumstances.

Since the act’s passage, employers have raised concerns and questions about the law’s requirements — questions the U.S. Department of Labor (DOL) has been working quickly to address through informal guidance materials posted on its website. It also issued regulations that went into effect on April 2, 2020, the day after the law took effect. This page outlines the act’s basic leave requirements as well as some of the big issues addressed by the DOL’s guidance and regulations.

Emergency Paid Sick Leave

The FFCRA requires many employers to provide paid sick leave to their employees for qualifying reasons related to COVID-19.

Coverage and Eligibility

Employers with fewer than 500 employees will be required to provide full-time employees with an additional 80 hours of paid sick leave, or, for part-time employees, the number of hours equal to the hours worked during an average two-week period. For part-time employees with varying schedules, employees can base their calculation on the average number of hours the employee was scheduled per day over a six month period, or, if they haven’t worked that long, the reasonable expectation of the average hours the employee is expected to be scheduled to work.

The DOL provided more guidance on how to calculate hours for part-time employees in its new regulation.1

Full-time Employees

The regulation clarifies that employees are considered full-time if they’re scheduled to work at least 40 hours per week. Additionally, if an employee has an irregular schedule but averages 40 hours or more per week over the six-month period prior to taking leave, the employee is considered full time and may take up to 80 hours of paid sick leave.

Part-time Employees

The DOL provide the following guidance for part-time employees:

  • If the employee has a normal weekly schedule, the employee is entitled to the number of hours the employee is normally scheduled to work over two workweeks.
  • If the employee has a varying schedule and has been employed for at least six months, the employee is entitled to up to the number of hours equal to 14 times the average number of hours that the employee was scheduled to work each calendar day over the six-month period ending on the date on which the employee takes leave, including any hours in which the employee took leave of any type.
  • If the employee has a varying schedule and has worked less than six months, the employee is entitled to number of hours equal to 14 times the number of hours the employee and employer agreed the employee would work, on average, each calendar day. If there is no agreement, the employee is entitled to the number of hours equal to 14 times the average number of hours per calendar day that the employee was scheduled to work over the entire period of employment, including any hours in which the employee took leave of any type.

For example, if an employee takes leave on April 13, 2020, the six-month period for estimating hours is October 14, 2019, to April 13, 2020, which consists of 183 calendar days. In that time, the employee worked 550 hours over 100 workdays and took 100 hours of personal and medical leave, which means the employee has 650 total hours. Next, divide 650 hours (the total hours) by 183 calendar days, which equals 3.55 hours per calendar day (650/183 = 3.55). Then, multiply 3.55 hours by 14 (the number of calendar days in two weeks) to obtain the two-week average of 49.7 hours (3.55 x 14 = 49.7).

The leave is provided in addition to any existing paid leave available to employees and is available for immediate use, regardless of how long the employee was employed — meaning it doesn’t need to be accrued like most paid leave.

Reasons for Leave

Employers must provide this emergency paid sick time when the employee is unable to work (or telework) because the employee is:

  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 due to concerns related to COVID-19;
  3. Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. Caring for an individual who is subject to a government quarantine or a self-quarantine advised by a health care provider (reasons 1 and 2 above);
  5. Caring for their child if the child’s school or place of care has been closed, or the childcare provider is unavailable due to COVID-19 precautions; or
  6. Experiencing any other “substantially similar condition” specified by the Secretary of Health and Human Services.

Rate of Pay

Employees must be paid at their regular rate for reasons No. 1 through No. 3 above, except that pay cannot exceed $511 per day and $5,110 total. When employees take paid sick leave to care for someone else, or the employee is experiencing any other “substantially similar condition,” i.e., reasons No. 4 through No. 6 above, then employers can pay employees two-thirds their regular rate, except that pay cannot exceed $200 per day and $2,000 in the aggregate in those circumstances.2

The new regulation specifies that employers must pay employees the higher of the employee’s “average regular rate,” the federal minimum wage, or any state or local minimum wage the employee is entitled to. For most employers, this is going to require calculating the average regular rate.

To determine the “average regular rate,” employers must compute the “regular rate for each full workweek” in which the employee has been employed over the six months preceding leave, or if employed for less than six months, the entire period of employment. Employers must then compute the average of the weekly rates, weighted by the number of hours worked for each workweek.3

Additionally, an employee’s commissions, tips and piece rates are incorporated into the calculation of the regular rate under this law in the same way they are under the Fair Labor Standards Act (FLSA).

If, over the six-month period, an employee is paid exclusively through fixed hourly wage or salary, the average regular rate would equal the hourly wage or hourly equivalent of their salary.

But, if an employee is paid through different arrangements, such as piece rate, commissions or tips, the regular rate may fluctuate from week to week. In that case, for each full workweek in the six-month period, employers will calculate all remuneration not excluded from the regular rate under the Fair Labor Standards Act. Then, employers will compute the number of hours worked for each full workweek. (Note: This does not count hours when the employee took leave.) Finally, divide the total pay over the six-month period by all hours worked. The result is the average regular rate.

For example, if there are 26 full workweeks in the six-month period, and an employee worked 1,150 total hours over those weeks and received $23,000 in non-excludable remuneration, then the average regular rate is $20.00 ($23,000 divided by 1,150 hours).

The DOL addresses calculation of the average regular rate in its Q&A guidance. (See #8 – “What is my regular rate of pay for purposes of the FFCRA?” and #82 “How do I compute my employee’s average regular rate for the purpose of the FFCRA?”)

To read more about the regular rate, see “Regular Rate of Pay Defined” in Calculating Overtime.

Notice Requirements

Employers are obligated to post the emergency paid sick leave requirements for employees in conspicuous places at the worksite. The DOL issued a model poster employers may use, and stated on a notice Q&A page that employers can comply with notice requirements for teleworking employees in one of two ways: by emailing or direct mailing this notice to their employees or by posting the notice on an “employee information internal or external website.”

Exemptions

The law allows the exemption of health care providers and emergency responders from the sick pay requirements, including allowing them to opt out. It also allows for the exemption of small businesses with fewer than 50 employees from the requirement to pay sick leave when the employee misses work while caring for their child if the child’s school has been closed, or the childcare provider is unavailable due to COVID-19 precautions (reason No. 5 above), when the requirements would “jeopardize the viability of the business as a going concern.”

  • The Emergency Paid Sick Leave program took effect on April 1, 2020, and remains in effect until December 31, 2020.

Emergency Family and Medical Leave Expansion

The FFCRA also temporarily provides up to 12 weeks of emergency FMLA leave for a “qualified need related to public health emergency.”

Coverage and Eligibility

For specified COVID-19-related reasons, the current employee threshold for coverage is changed from covering employers with 50 or more employees to covering any workplace with fewer than 500 employees. Employee eligibility requirements for emergency FMLA are also lowered. Instead of working 1,250 hours in the preceding 12 months, the emergency FMLA provisions apply to any employee who has been employed for at least 30 days.

Reason for Leave

The employee may only take emergency FMLA leave when the employee is unable to work (or telework/remote work) due to a need to care for the employee’s child under 18 years of age if the school or place of care has been closed or the childcare provider is unavailable due to a public health emergency related to COVID-19. DOL regulations state that employees may take leave to care for a child 18 or older who is incapable of self-care because of a mental or physical disability.

Paid Leave

Unlike standard FMLA leave, a significant portion of the emergency FMLA leave must be paid. The first 10 days of emergency FMLA leave may be unpaid, so employees may elect to substitute vacation, personal leave or paid sick leave during that time.

After the first 10 days, the employer must pay full-time employees at a rate of no less than two-thirds of their regular rate of pay for the hours normally scheduled for up to 10 weeks. Employees who work part-time, irregular schedules are entitled to a rate based on the average number of hours worked over a six-month period. If they haven’t worked that long, then they’re entitled to the average number of hours per day that the employee would normally be scheduled to work. Paid leave under this law is capped at $200 per day and $10,000 in the aggregate, per individual.

The new regulations specify that employees are entitled to two-thirds of their “average regular rate” (as described in the Emergency Paid Sick Leave section above) multiplied by the employee’s scheduled number of hours for each day of leave taken.4

The scheduled number of hours is determined as follows:

  • If the employee has a normal work schedule, then it is the hours the employee is normally scheduled to work on that day.
  • If the employee has a varying schedule and has been employed for at least six months, the employee is entitled to the average number of hours the employee was scheduled to work each workday over the six-month period ending on the date on which the employee takes leave, including any hours in which the employee took leave of any type.
  • If the employee has a varying schedule and has worked less than six months, the employee is entitled to the average number of hours employee and employer agreed the employee would work, on average, each calendar day. If there is no agreement, the employee is entitled to the to the average number of hours per workday that the employee was scheduled to work over the entire period of employment, including any hours in which the employee took leave of any type.

Using the same example from the paid sick leave section above of an employee working 550 hours over 100 workdays and taking 100 hours of personal and medical leave within the six-month period, the number of hours per workday is calculated by dividing 650 by the 100 workdays, which is 6.5 hours per workday. That employee would be entitled to 6.5 hours pay for each day of expanded leave taken at two-thirds of their average regular rate, subject to the cap.

  • Note that an employee’s average hours per workday may exceed eight hours per day. If, after doing the above calculation, an employee averages 9.2 hours per workday, the employer must pay the employee 9.2 hours for each day of leave times two-thirds of the employee’s average regular rate, but it’s still subject to the cap of $200 per day and $10,000 total.

The regulation also allows employers to compute the amount of pay in hourly increments instead of full days. For each hour of expanded FMLA (after the first two weeks) the employer must pay two-thirds of the employee’s “average regular rate.”5

Exemptions

The law allows for the exemption of certain health care providers and emergency responders and to exempt small businesses with fewer than 50 employees from its requirements when they would jeopardize the viability of the business.

Job Protections

As with standard FMLA leave, the emergency leave is protected, meaning an employer must return the employee to the same or an equivalent position upon their return. Small employers with fewer than 25 employees are exempted if the position doesn’t exist due to economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency. However, the employer must make reasonable efforts to restore the employee to an equivalent position, and, if those efforts fail, the employer must make reasonable efforts to contact the employee if an equivalent position opens within a year.

  • The Emergency FMLA expansion program took effect on April 1, 2020, and remains in effect until December 31, 2020.

Tax Credits

The act provides quarterly tax credits for employers required to pay for leave under the paid sick leave or emergency FMLA requirements. The DOL and Internal Revenue Service (IRS) announced that businesses can begin quickly taking advantage of the tax credits under a plan in which they withhold certain payroll taxes equal to the amount of leave paid, rather than depositing them with the IRS. If that amount is insufficient, employers will be able to file a request for an accelerated payment from the IRS, which the IRS expects to process in two weeks or less. The IRS issued guidance and FAQs on its tax credit plan detailing the plan’s specifics. Employers should review the IRS guidance for detailed instructions on how to claim their tax credits.

U.S. Department of Labor Regulations and Guidance

Since the act was passed, the DOL has been busy trying to answer employers’ most common questions leading up to April 1 by posting informal guidance on its website, addressing, for example, how the new federal leaves work with existing leaves, whether they can be taken intermittently, documentation, the effect of worksite closures and reduced hours, and some additional information on the small business exemption.

The DOL issued regulations on April 1, 2020 that provide additional clarity and certainty on the FFCRA’s requirements. The following highlights some of the big issues but is not exhaustive.

Documentation

  • The FFCRA regulations require employees to provide notice to their employers of their need to take either paid sick leave or expanded family and medical leave.

The notice must include the following information:

  • Employee’s name;
  • Date(s) for which leave is requested;
  • Qualifying reason for the leave; and
  • Oral or written statement that the employee is unable to work because of the qualified reason.

Employees must also provide additional information specific to the qualifying reason for leave (see Reasons for Leave and Reason for Leave above), including:

  • If the employee is subject to a quarantine or isolation order, the name of the government entity that issued the order;
  • If the employee has been advised to self-quarantine due to COVID-19 concerns, the name of the health care provider who advised the employee;
  • If the employee is caring for someone else, the employee must provide the name of the government entity that issued the quarantine or isolation order affecting the individual, or the information of the health care provider who advised the individual to self-quarantine; or
  • If the employee is taking care of a child whose school is closed or childcare is unavailable due to COVID-19, then the employee must provide the name of the child being cared for, the name of the school, place of care or childcare provider that has closed, and a representation that no other suitable person will be caring for the child during the leave.

The regulation specifies that employers may also request additional materials as needed to support their requests for FFCRA tax credits and tells employers to consult recently released IRS tax credit guidance for more detail. Currently, the IRS guidance largely mirrors the employee information requirements listed above, with one difference related to caring for children whose school or day care is closed. In addition to the requirements described above, the IRS guidance also requires, with respect to the employee’s inability to work or telework because of a need to provide care for “a child older than 14 during daylight hours, a statement that special circumstances exist requiring the employee to provide care.”

The regulation states that employers may not require the employee’s notice include documentation beyond what’s allowed by the regulation (the items listed above). Thus, for the time being, it appears as though employers cannot require employees to provide notes from health care providers, copies of government orders or school closure notices, or other supplemental documentation.

CalChamber’s COVID-19-Related Paid Sick Leave or Family and Medical Leave (FFCRA) — Employee Notice includes all the above required information and the COVID-19-Related Paid Sick Leave or Family and Medical Leave (FFCRA) Documentation Checklist — For Employer Use Only will help guide you through the required documentation.

  • A recent federal court decision struck down a narrow provision of the documentation regulation that required the employee submit documentation prior to taking FFCRA leave. The court noted that the FFCRA provides that employers may require employees to use reasonable notice procedures after the first paid sick day, and, for expanded family leave, employees must give notice of leave “as is practicable.” Requiring documentation prior to taking leave is more stringent than the FFCRA actually requires. Employers that have been requiring documentation prior to granting leave should adjust their policies and practices to ensure documentation isn’t required to begin FFCRA leave.

In order to obtain the FFCRA tax credits, the IRS requires some additional information from employers, including:

  • Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework, and qualified sick and family leave.
  • Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages.
  • Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
  • Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

Employers can read more about the FFCRA tax credit process on the IRS guidance page.

The new regulation requires employers to keep the above documentation for four years, regardless of whether the employee was granted leave or not.

Employers should develop a process for collecting the above information from employees and consult with legal counsel before denying leave under the new law.

Retroactivity

The new law is not retroactive. It only applies to leave taken between April 1, 2020, and December 31, 2020. The DOL clarified that this means if employers gave employees paid leave prior to April 1, 2020, for circumstances that constitute a qualifying reason under new paid sick leave law, employers cannot count that toward the new paid sick leave requirements and deny them new paid sick leave — the law imposes a new leave requirement on employers that is effective April 1.

Intermittent Leave

DOL regulations state that, generally, employees may take paid sick leave or expanded family and medical leave intermittently (i.e., in separate periods of time, rather than one continuous period), provided the employer and employee agree. There are some limitations depending on the qualifying reason for leave and whether the employee is teleworking or reporting to their usual worksite.

Teleworking employees may take both the paid sick leave and expanded FMLA leave intermittently. Additionally, teleworking employees may take intermittent leave in any increment, provided the employer and employee agree on it.

If the employee still reports to their usual worksite, there’s less flexibility for intermittent leave. In that case, employees can only take paid sick leave intermittently for the qualifying reason of caring for a child whose school or place of care is closed, or childcare provider is unavailable due to COVID-19. If employees are taking paid sick leave for any of the other qualifying reasons, they must continue to use their leave until either the leave is exhausted or the qualifying reason is resolved. Employees coming to their usual worksite may also take emergency FMLA leave intermittently by agreement. The DOL is encouraging employers and employees to be collaborative and flexible under the circumstances.

  • A recent federal district court decision invalidated the portion of the regulation requiring employer consent to intermittent use of emergency PSL/FMLA leave. In response, the DOL revised its regulations, effective September 16, 2020, reaffirming that intermittent FFCRA leave is only available upon an employer’s consent, and it analogizes its FFCRA intermittent leave rule to longstanding FMLA principles that require employer consent for intermittent leave when FMLA isn’t taken for a medical reason. The DOL considers FFCRA intermittent leave to fall outside of leave taken for a medical reason. Thus, employer authorization for intermittent leave is appropriate.

For leave taken to care for a child whose school or place of care of closed, the DOL has clarified that if a child’s school is closed for in person attendance and is conducting distance learning, then it is “closed” for purposes of the FFCRA and employees may eligible for leave. If, under those circumstances, the employee needs to take Monday, Wednesday, and Friday off, for example, to help with distance learning, then the employee may do so intermittently if the employer agrees.

However, according to recent DOL guidance, if the school is using a hybrid schedule and is only closed on Monday, Wednesday, and Friday, then “each day of closure or unavailability is a separate reason for leave, and thus [the employee] would not need to take leave for a single reason intermittently. As such, [the employee] would not need employer permission to take leave on just the days of closure or unavailability.”

Amount of Expanded Family and Medical Leave

The regulation clarifies that leave taken under the expanded FMLA provisions counts toward the 12 week overall total leave provided by FMLA because it is a type of FMLA leave. In other words, the expanded FMLA leave does not provide an additional 12 weeks of leave on top of what is provided under traditional FMLA. Thus, an employee’s eligibility for expanded FMLA leave depends on how much leave the employee has already taken during the 12-month period that the employer uses for FMLA.

For example, if an eligible employee took three weeks of FMLA leave for their own serious health condition in January 2020, the employee would have nine weeks of FMLA left. Assuming eligibility requirements are met, the employee could take up to nine weeks of expanded FMLA leave, rather than 12 weeks.

Worksite Closures

The DOL’s regulations make it clear in several places that employees may not take paid leave (either paid sick leave or expanded FMLA) where the employer does not have work for the employee.

The DOL clarified that if a worksite closed before the act’s effective date of April 1, 2020, for either lack of business or because of government order, employees that worked there are not entitled to leave under the act. If the worksite is closed after April 1 but before the individual requests leave, that person is not entitled to leave. If an employer closes a worksite while an employee is on leave, the employer must pay for all paid sick or emergency FMLA leave taken before the closure. Once closed, the employee is no longer entitled to leave benefits, but may be entitled to unemployment benefits.

The DOL also clarified that employees aren’t entitled to leave for hours they are no longer scheduled. So, for example, if an employee was working 40 hours per week and is reduced to 20 hours due to the employer’s lack of work for the employee, the employee cannot use paid sick leave or emergency FMLA for the hours they’re no longer scheduled to work, even if the reduction in available work is due to COVID-19.

  • In a legal challenge brought under the Administrative Procedure Act, a recent federal district court decision struck down this regulation provision, what the court referred to as the “work availability requirement” because the DOL applied the work requirement unequally among the six qualifying reasons for leave under EPSL and, in general, the DOL failed to properly explain why work availability was a requirement for leave. In response, the DOL revised its regulations, effective September 16, 2020, reaffirming the work availability requirement for all six qualifying reasons for EPSL and adding further explanation for the requirement based on the language of the statute.

Small Business Exemption

The act’s small business exemption applies to employers with fewer than 50 employees and is available for both the emergency paid sick leave and expanded FMLA. It applies only to leave for the qualifying reason of caring for a child if their school or place of care is closed or their childcare provider is unavailable due to COVID-19, and not for any of the other qualifying reasons. This means small employers may be exempt from expanded FMLA leave requirements entirely but only one qualifying reason for paid sick leave. To qualify for the exemption, small employers must show that paying for the leave would, in the words of the law, “jeopardize the viability of the small business as a going concern.” The DOL’s new regulation expanded on what that means, stating that a small business could claim the exemption if an authorized officer of the business determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’ expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the small business’ financial health or operational capabilities because of their specialized skills, knowledge of the business or responsibilities; or
  3. There are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

To elect the small business exemption, an employer must document that a determination has been made as to the criteria listed above. The employer should not send the documentation to the DOL, rather it should retain the records in its files.

Health Care Provider Exemption

DOL regulations initially defined “health care provider” very broadly and focused on who the employer was. However, a federal district court decision invalidated the DOL’s definition, ruling that it was overbroad.

  • In response, the DOL revised the regulation, effective September 16, 2020, to focus on the skills, role, duties or capabilities of the employee rather than focusing on the employer’s identity.

“Health care provider” now means:

  • A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices;
  • Any person who is employed to provide diagnostic services, preventative services, treatment services or other services integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care; and
  • Any other person determined by the Secretary of Health and Human Services to be capable of providing health care services.

The DOL will likely continue to revise and expand its website guidance content to address employer’s questions. Employers should continue to monitor the DOL’s website for updates. Employers can also read the full text of the new regulation for more information.

For more information and resources related to COVID-19, please visit CalChamber’s COVID-19 resource page.

California COVID-19 Supplemental Paid Sick Leave

On September 9, 2020, Governor Gavin Newsom signed AB 1867, a bill that immediately expands supplemental paid sick leave for COVID-19-related reasons for certain employers not already covered by existing leaves.

Shortly after the FFCRA went into effect, there was talk of creating more COVID-19-related paid leave requirements to fill the “gaps” left by the law, i.e., to cover larger employers left out of the FFCRA. Initially, the governor took executive action, creating supplemental paid sick leave for food sector workers with Executive Order N-51-20, discussed below in “California COVID-19 Supplemental Paid Sick Leave for Food Sector Workers." Now, AB 1867:

  1. Codifies the Executive Order in new Labor Code section 248; and
  2. Extends COVID-19-related paid sick leave to all employers with 500 or more employees and to health care providers in new Labor Code section 248.1.

Covered Employers

In addition to food sector employers covered by Executive Order N-51-20, AB 1867 broadly expands the leave coverage, requiring all employers with 500 or more employees in the United States to provide COVID-19 supplemental paid sick leave to their California employees. It also extends those requirements to health care providers and first responders whose employers elected to exclude them from FFCRA leave requirements.

Employee Eligibility

Employees who work for covered employers can take COVID-19 supplemental paid sick leave if the worker is:

  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.
  3. Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Employees are not eligible for supplemental paid sick leave if they work from home.

Leave Amounts and Pay

Full-time employees are eligible for 80 hours of COVID-19 supplemental paid sick leave. “Full-time” means the employee was either scheduled to work 40 hours per week or worked, on average, at least 40 hours per week during two weeks prior to taking leave.

Part-time employees are eligible for an amount of leave equal to the number of hours they’re normally scheduled to work in two weeks. If an employee works a varying schedule, they’re entitled to hours equal to 14 times the average number of hours the employee worked each day in the prior six months, or over the total time of employment if less than six months.

The law contains a special provision for firefighters. Firefighters scheduled to work more than 80 hours in the two weeks prior to taking leave are entitled to the total number of hours they were scheduled to work in those two weeks.

Employers must pay employees the highest of either the employee’s regular rate of pay for their last pay period, the state minimum wage or the applicable local minimum wage. The amount of pay is capped at $511 per day and $5,110 total per employee.

Interactions with Other Leaves

This leave is provided in addition to already existing paid sick leave under California Labor Code section 246.

An employer may not require an employee to use other paid or unpaid leaves before the employee uses COVID-19 supplemental paid sick leave.

Employers who have already provided leave under Executive Order N-51-20 don’t need to provide additional leave under this law. Additionally, employers may not be required to provide additional leave under this law if they already provided comparable COVID-19 specific paid sick leave under federal or local laws, or under their own policies. This issue may become increasingly complicated as more local ordinances are passing COVID-19 supplemental paid sick leave measures. Employers subject to local ordinances should consult with legal counsel on their obligations under those ordinances and this new law.

Notice Requirements

Employers are required to provide notice to their employees informing them of their rights under the new law. The Labor Commissioner created two model posters, one for food sector workers and a second for all other covered employers. Employers can download the posters and distribute as appropriate, and can send the notice electronically to employees who are telecommuting.

Additionally, Labor Code section 248.1 covering non-food sector employers incorporates by reference California’s Health Families Healthy Workplace wage statement standard from Labor Code section 246(i), meaning those employers will need to update their wage statements to provide employees notice of the amount of COVID-19 supplemental paid sick leave available each pay period under the new law.

Effective Date

AB 1867 is a budget trailer bill, meaning it went into effect immediately when signed on September 9, 2020. But the new supplemental paid sick leave provisions will take effect “not later than 10 days” after enactment, meaning covered employers must begin providing this new leave no later than September 19, 2020.

The COVID-19 supplemental sick leave has a sunset provision, expiring on December 31, 2020, or upon the expiration of any federal extension of the federal emergency paid sick leave provisions under the FFCRA, whichever is later.

The DLSE’s new guidance answers employers’ common questions about coverage, eligibility, calculating leave amounts and pay, and how previously provided paid sick leave under local ordinances, for example, may be credited toward the new law’s requirements. Employers should consult these new FAQs for more information.

California COVID-19 Supplemental Paid Sick Leave for Food Sector Workers

  • On April 16, the governor signed Executive Order N-51-20, creating a COVID-19 Supplemental Paid Sick Leave that requires employers, who are covered by Industrial Welfare Commission Wage Orders 3, 8, 13 and 14, Health & Safety Code section 113789 and have 500 or more employees, to provide up to two weeks (80 hours) of supplemental paid sick leave to food sector workers unable to work due to COVID-19.
  • On September 9, 2020, the governor signed AB 1867, a budget trailer bill that went into effect immediately codifying Executive Order N-51-20 in new Labor Code section 248.

The COVID-19 Supplemental Paid Sick Leave, created by the Executive Order, and now codified in Labor Code section 248, is limited in scope and applies only to food sector workers (such as farmworkers, agricultural workers and those working in grocery stores and fast food chains) and delivery network companies/drivers.

Workers covered under the order are entitled to take supplemental sick leave if they’re 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; or
  3. Prohibited from working by the “Food Sector Worker’s Hiring Entity” due to health concerns related to the potential transmission of COVID-19.

The total amount of supplemental sick leave time a qualified employee may take depends upon the number of hours that individual normally works. A worker considered “full-time” (40 hours per week) is entitled to the maximum of 80 hours of COVID-19 Supplemental Paid Sick Leave. Food sector employees not considered full-time or who work less than 40 hours per week are entitled to leave equal to the total hours they’re normally scheduled to work over two weeks. The order also provides for a method of calculating leave for a food sector worker on a variable-hour work schedule.

The leave must be made available upon the qualified food sector worker’s oral or written request and be paid out at a rate equal to the highest of either the:

  • Worker’s regular rate of pay for the last pay period;
  • State minimum wage; or
  • Local minimum wage.

Pay may not exceed $511 per day and $5,110 in total.

The COVID-19 Supplemental Paid Sick Leave is in addition to paid sick leave already required under California’s Health Families Healthy Workplace sick leave law, and it will be enforced in the same manner.

The law requires employers to post notice of the supplemental sick leave in a conspicuous place. However, if the employer has food sector workers who don’t frequent the workplace, the notice may be distributed by electronic means, such as via email. The Labor Commissioner provided a model notice for employers.

Additionally, the California Department of Industrial Relations posted a FAQ addressing a variety of questions about the supplemental leave.

Local Ordinances

  • Numerous cities and counties have passed their own emergency ordinances that require paid leave for COVID-19 related reasons.

Most of the local ordinances were designed to cover employers not already covered by the FFCRA and each local ordinance has some similarities with the FFCRA requirements. However, each ordinance is unique from the others. Employers should check to see if the cities or counties employees work within have enacted emergency ordinances covering school/daycare closures and should consult with legal counsel regarding their obligations.

  • Visit HRCalifornia’s Local Ordinances section for detailed information on local employment-related ordinances in California, including COVID-19-related ordinances.

1.29 C.F.R. sec. 826.21

2.29 C.F.R. sec. 826.22

3.29 C.F.R. sec. 826.25

4.29 C.F.R. sec. 826.24

5.29 C.F.R. sec 826.24(c)