The law takes effect no later than tomorrow.

As you are probably aware, the Emergency Paid Sick Leave Act of the federal Families First Coronavirus Response Act provides for 80 hours of paid sick leave to employees with qualifying reasons who work for employers with fewer than 500 employees. But what about workers who don't have rights under the FFCRA? Shouldn’t they get some paid time off during this pandemic?

Well, the federal government may have felt that large employers would provide paid time off anyway, but the state of California is not that confident. As a result, on September 9, Governor Gavin Newsom (D) signed emergency legislation, AB 1867, which codifies and expands an Executive Order that he issued in April.

Under Executive Order N-51-20, “hiring entities” with 500 or more employees in the United States that employed “food sector workers” were required to provide a maximum of 80 hours of paid sick leave to food sector workers who were “essential” and had to leave their homes to perform work.

The California Assembly has decided that Gov. Newsom's Executive Order did not go far enough, so it enacted AB 1867, which (among other things) adds Sections 248 and 248.1 to the Labor Code. These sections codify the Executive Order, beef up the enforcement process, and expand coverage to employers of first responders and health care workers whose employers had excluded them from eligibility for leave under the FFCRA.

Employees who work for covered employers may take paid sick leave under the new California law for 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.
• The employee is prohibited from working due to health concerns related to the transmission of COVID-19.

The provisions pertaining to food service workers are retroactive to April 16, 2020. Both laws expire whenever the Emergency Paid Sick Leave Act provisions of the FFCRA expire. That is currently December 31, but the laws could expire later if Congress postpones the expiration of the FFCRA. As with the FFCRA, the supplemental paid sick leave is capped at $511 a day and $5,110 in the aggregate for each employee.

If an employee has some sick or vacation pay, the covered employer must let the employee use this new paid leave first -- before using sick or vacation time. Employees who have already taken supplemental paid sick leave under Executive Order N-51-20 would not be entitled to additional leave. Employers who already provide the same or more paid sick leave for COVID-19 do not have to provide additional supplemental paid sick leave under this new legislation.

The new law also has notice, pay stub, and recordkeeping requirements. By seven days after the law’s effective date, the Labor Commissioner must make available a model notice to provide to employees. If employees are working remotely, employers may provide the notice electronically. Employers must also provide written notice regarding the amount of leave available on employees’ itemized pay stubs or in a separate writing provided on designated pay dates. They also must maintain records documenting hours worked, leave provided, and leave used by employees for at least three years.

Beware that the new law has teeth – it provides for enforcement by the Labor Commissioner and civil penalties for violations, in addition to a panoply of remedies provided by state and local laws, including California Business and Professions Code section 17200.

The law goes into effect immediately and no later than September 19 (that's tomorrow), so employers who think that they may be covered should consult with legal counsel and plan to implement the requirements promptly.