Published
September 25, 2020
It’s been a busy legislative year in the Golden State, where lawmakers continue to find ways to make doing business there more complicated. On September 9, California Governor Gavin Newsom signed into law AB 1867, which adds a new supplemental paid leave requirement for absences related to COVID-19. The law applies to employers with 500 or more employees nationwide as well as certain employers in the food service, health care, and emergency services industries.
Under the new law, covered employees—both full-time and part-time—become eligible to receive up to 80 hours of additional paid leave if they must leave their home to work and become subject to a government-imposed quarantine or isolation order, are advised by a healthcare professional to self-quarantine or isolate, or are prohibited from working by their employer, all of which are limited to reasons related to COVID-19.
Several municipalities, including Los Angeles, San Francisco, San Diego, and San Jose, passed similar supplemental paid leave ordinances starting in spring 2020 as the COVID-19 pandemic spread, and AB 1867 expands the same coverage statewide.
In particular, it largely mirrors the localities’ ordinances that included employers with more than 500 employees, which were not subject to the federal Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA). It also codifies an earlier executive order by Governor Newsom that provided COVID-19 paid leave for workers in the food service industry.
AB 1867 became effective immediately, and it expires on December 31, 2020, or upon the expiration of any federal extension of the FFCRA provisions, whichever is later. The law also applies retroactively to April 16, 2020, for covered food service workers, and it caps the benefits to $511 per day and $5,110 in the aggregate to an employee.
While the provisions in AB 1867 on the surface appear understandable, the law does open the door for abuse that could frustrate employers. The legislation allows employees to take the paid leave at their own discretion, and employers may not demand medical certification that an employee has valid reason to take it unless there is evidence to suggest that they do not.
In addition, employers may not require employees to use existing paid leave benefits prior to or in lieu of the supplemental COVID-19 paid leave, but this rule does not apply for supplemental COVID-19 paid leave that may already be provided by the employer. Similarly, inasmuch as federal or local laws might require supplemental paid leave for COVID-19 related purposes, employers may apply those requirements toward the 80 hours of leave required under AB 1867.
AB 1867 also requires employers to include employees’ COVID-19 leave balances on their pay stubs essentially immediately, and it requires employers to post a notice explaining to employees their supplemental paid leave benefits.
For employers in California, AB 1867 presents a notable obligation that will require them to act quickly to ensure compliance. How it might affect their bottom line is another thing altogether.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
