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September 2020

California Enacts AB 1867 to Provide Supplemental Paid Sick Days to Employees Affected by COVID-19

On September 9, 2020, California Governor Gavin Newsom signed another addition to the California Labor Code, triggered by the ongoing COVID-19 health crisis, into law. Labelled as legislation to eliminate “coverage gaps to ensure every employee has access to paid sick days if they are exposed or test positive to COVID-19”, AB 1867 is effective immediately with an absolute deadline for compliance set for September 19, 2020. AB 1867 will be enforced by the California Labor Commissioner in a manner yet to be finalized.

In essence, AB 1867 mandates employers with 500 or more employees nationwide to provide supplemental sick pay in relation to COVID-19 (“SSP”) to qualified employees. Qualified employees are those who must leave their home to perform work (i.e., those not teleworking), but who cannot do so because they are subject to a governmental quarantine or isolation order, advised by a healthcare provider to quarantine or self-isolate, or are prohibited from working by the employer due to concerns of potential transmission of COVID-19.

Qualified employees are entitled to SSP in accordance with their regular work schedule at their regular rate of pay, not to exceed $511 per workday and $5,110 total for this SSP. The regular work schedule for purposes of AB 1867 are as follows:

  • Full-time employees working 40 hours per week may receive 80 hours of SSP;
  • Part-time employees who work less than 40 hours per week may receive the total number of hours the employee is normally scheduled to work over the two week period preceding the payment of SSP;
  • Employee who works variable hours may receive 14 times the average number of hours the employee worked each day in the 6 months preceding the date the employee takes SSP (note: if the employee has worked over a period of fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the employee has worked, or if the employee works a variable number of hours and has worked over a period of 14 days or less, the total number of hours the employee has worked).

If needed, other accrued sick days or vacation may be used after the exhaustion of AB 1867 supplemental sick pay. Thus, employers may not require employees to exhaust their accrued sick days or vacation first. As with other forms of accrued leave, employers will also have to account for remaining balances of AB1867 supplemental sick pay on employee wage statements to remain in compliance with California Labor Code § 226 and related laws.

A silver lining for employers implicated by AB 1867 may exist. If employers provided supplemental sick pay relating to COVID-19 of their own volition prior to the enactment of AB 1867, then such sick pay may be retroactively counted toward the $5,110 total. However, certain parameters or restrictions may apply depending on the circumstances.

In sum, AB 1867 attempts to provide seamless access to supplemental sick pay for employees affected by COVID-19 who work for larger employers. Nevertheless, enforcement is at best unclear for the time being. For more information regarding how AB 1867 may impact your business, please contact the authors.

Employment Law

Brandon D. Saxon

Employment Law