New Large Non-Food Sector Paid Sick Leave Mandate  Effective Sept. 19

Bryan Little, Farm Employers Labor Service

September 18, 2020

AB 1867 (signed by Gov. Newsom on September 6) mandates both food sector employers and employers in other industries employing 500 or more employees (employers not already covered by the federal Families First Coronavirus Response Act) provide supplemental paid sick leave.  Large food sector employers who have been covered under the executive order will be covered by AB 1867 going forward.  AB 1867 codifies Governor Newsom’s April 2020 Executive Order mandating such paid sick leave for food sector employees of employers of 500 or more (covering agricultural, packing and processing and similar employees).  The Department of Industrial Relations Division of Labor Standards Enforcement has issued Frequently Asked Questions (“FAQ”) regarding the new state paid sick leave mandate.

The FAQ also clarifies that being “subject to a Federal, State or local quarantine or isolation order” does not include the state’s stay-at-home order but is referring to an order that is specific to a particular employee. An order that directs an individual who lives with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking COVID-19 Supplemental PSL.

A covered employer cannot deny an employee AB 1847-required supplemental paid sick leave based on the lack of certification from a healthcare provider. However, a hiring entity may reasonably ask for documentation before paying the sick leave if it has other information indicating the employee is not requesting supplemental paid sick leave for a required purpose.

The FAQs also provide a more detailed explanation of the calculation of leave entitlement for part-time employees with variable schedules. An employee that is considered full-time (40 hours/week) is entitled to 80 hours of COVID-19 Supplemental PSL.

The Labor Commissioner clarifies that for a food-sector employer to comply with the paid sick leave mandate, the employer must:

• have had an existing supplemental paid benefits program as of April 16, 2020; and,
• have paid a worker at a rate equal to or greater than what the worker is entitled to under California law.

Existing paid sick leave policies that do not meet the requirements of the E.O. --  including those that partially, but do not fully, replace a worker’s pay (up to $511 per day); which provide fewer hours of leave than the E.O; or that do not provide a paid benefit for COVID-19-related reasons -- do not meet the criteria to comply with the paid sick leave mandate. Employers may always provide greater benefits to their workers.

The Division also provides a model notice posting food sector employers are required to display in a conspicuous place that contains information about COVID-19 Supplemental PSL along with model notices.  You can find the model notice for non-food-sector employers here.