On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which is intended to fill gaps left by the Families First Coronavirus Response Act (“FFCRA”). The new law requires that private employers with 500 or more employees in the United States provide eligible (non-food sector) employees with up to 80 hours of supplemental paid COVID-19 sick leave (“Supplemental COVID-19 Leave”). AB 1867 also codifies the food sector-specific supplemental paid leave provided under Executive Order N-51-20, and extends paid leave benefits to health care and emergency responders who were not provided with paid sick leave under the FFCRA.

For non-food or emergency sector employees, AB 1867 adds section 248.1 to the Labor Code (“Section 248.1”), which requires covered employers to provide eligible workers with Supplemental COVID-19 Leave, beginning September 19, 2020, when they are unable to work due to any of the following reasons:

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; and/or
• The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Eligible employees who are classified as “full time” or who worked or were scheduled to work, on average, at least 40 hours per week during the two weeks preceding the leave are entitled to up to 80 hours of leave. Workers who are not considered “full time” or who work fewer than 40 hours per week are entitled to leave based on one of three calculation methods.

Subject to certain conditions, Supplemental COVID-19 Leave runs concurrently with similar leave provided under local COVID-19 leave ordinances and/or orders, but it is distinct from and in addition to non-COVID-19 sick leave. Like FFCRA paid leave, Supplemental COVID-19 Leave is capped at $511 per day and/or $5,110 in the aggregate per employee.

AB 1867 also requires that covered employers post a notice poster in workplaces or, if employees are not at the worksite, provide it to them electronically. In addition, covered employers must include information regarding employees’ Supplemental COVID-19 Leave balances in the same manner as for non-COVID-19 paid sick leave, in accordance with Labor Code section 246(i), beginning the first full pay period after September 9, 2020.

California employers with 500 or more employees should, therefore, move quickly to update COVID-19-related leave policies, provide notice and update their wage statements, as non-compliance comes with the potential for penalties.

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