California’s latest move on the COVID-19 front is an attempt to fill the gap left by the federal Families First Coronavirus Response Act (FFCRA) – and requires larger employers to act immediately. The FFCRA – which mandates paid sick and FMLA leave for designated COVID-19 reasons – does not apply to employers with 500 or more employees. The FFCRA also allows employers of certain health care workers and emergency responders to exclude those employees from its coverage.
On September 10, 2020, Governor Newsom closed these FFCRA loopholes for California-based employees by signing A.B. 1867 into law. The new statute takes effect immediately, and by September 20, 2020, requires employers to provide up to 80 hours of “COVID-19 supplemental paid sick leave” to the following “covered workers”:
- California-based employees of larger employers (500 or more employees in the U.S.);
- Specified “food sector workers” (A.B. 1867 effectively codifies Governor’s Newsom’s existing Executive Order already granting paid COVID-19 paid sick leave to these workers); and
- Health care workers and emergency responders who were excluded from FFCRA by their employers.
A.B. 1867 does two other things:
- It requires employers to allow employees who work in food facilities, as defined in Section 113789 of the Health and Safety Code, to wash their hands every 30 minutes and additionally as needed, and
- It creates a new mediation pilot program under which small employers (5 to 19 employees) may request mediation through the Department of Fair Employment and Housing (DFEH) within 30 days of receiving a right to sue notice for alleged violations of the California Family Rights Act (CFRA), the state law equivalent of the FMLA.
Interestingly, nothing in A.B. 1867 expressly limits the new COVID-19 sick leave benefit to California-based employees, but California’s ability to regulate employment relationships generally stops at its borders.
A.B. 1867’s requirements are detailed below.