California Passes Bills Expanding Rights to Both Paid and Unpaid Leave

California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave.  In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly revise their policies and procedures when it comes to reviewing employee requests for unpaid leave.

Assembly Bill 1867

To recap, the Families First Coronavirus Response Act (“FFCRA”) provides that employees are entitled to up to 80 hours of paid sick leave for reasons related to COVID-19.  FFCRA, however, applies only to employers with fewer than 500 employees.  Like many ordinances adopted after the passage of FFCRA, AB 1867 attempts to fill the gap left by FFCRA by applying to employers with 500 or more employees.

AB 1867 fills this gap in two ways.  First, it creates new California Labor Code section 248, which mirrors Governor Gavin Newsom’s prior Executive Order N-51-20.  Section 248 requires entities with 500 or more employees to provide their “food sector workers” with up to 80 hours of “COVID-19 food sector supplemental paid sick leave.”  Second, it also creates new Labor Code section 248.1.  This section applies more broadly than section 248 as it requires that employers with 500 or more employees provide all employees with up to 80 hours of “COVID-19 supplemental paid sick leave.”

Both “COVID-19 food sector supplemental paid sick leave” under section 248 and “COVID-19 supplemental paid sick leave” under section 248.1 must be paid at the higher of the employee’s regular rate of pay, California’s minimum wage, or any applicable local minimum wage and can be used by employees if the employee is:

• subject to a federal, state, or local quarantine or isolation order related to COVID-19;
• advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
• prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Some good news for employers.  First, both sections 248 and 248.1 are set to expire on December 31, 2020 or upon any extension of the FFCRA.  Second, and as for section 248.1, if a hiring entity has already provided its workers with supplemental paid leave that can be used for any of the reasons and at the same rates set forth in that section, then the hiring entity may count those hours toward the 80 hours provided for in section 248.1.  This includes any leave provided under section 248.  Excluded from this, however, is any paid sick leave provided under section 246, which is California’s general law providing for paid sick leave.

Ideally, California employers would already have in place policies and procedures to ensure compliance with AB 1867 as many of these rules were previously put in place pursuant to Governor Newsom’s Executive Orders.  To the extent this has not already been done, employers should do this promptly as the number of new lawsuits alleging employment claims premised on COVID-19 continues to grow.

Senate Bill 1383

The California Family Rights Act (“CFRA”) is the California equivalent of the federal Family and Medical Leave Act (“FMLA”).  For the most part, California employers use CFRA and FMLA interchangeably, and for good reason.  Both provide employees with 12 weeks of unpaid leave for child-bonding and in the event of a serious health condition of the employee and his or her child, spouse, or parent.  In addition, and in the majority of situations, the 12 weeks of unpaid leave provided for by CFRA and FMLA run currently.  Until now, the only major difference between the two laws was that FMLA applied to medical issues arising due to pregnancy while CFRA did not.

SB 1383 will cause California employers to revisit how they handle requests for leave under these laws.  For one, SB 1383 expands CFRA to apply to employers with five or more employees.  By doing this, it greatly increases the number of employers who will have to comply.  For another, it provides that CFRA leave can be used for additional categories of family members – grandparents, grandchildren, and siblings.

These two changes could allow employees in certain situations to “double-dip” and obtain 24 total weeks of unpaid leave in a given year rather than just 12.  For example, an employee caring for a sibling with a serious health condition could use his or her 12 weeks of CFRA time but still have 12 weeks of unpaid leave under FMLA for use during the same leave year.

Unlike AB 1867, which goes into effect immediately, SB 1383 doesn’t go into effect until January 1, 2021.  As such, employers have some time before they are required to modify their policies in order to comply with this new law.  Even with this additional time, however, employers should seek to get a start on that process now rather than wait until the last minute.