Newsom Takes Aim At 'Gap' In COVID-19 Paid Sick Leave Law

By Vin Gurrieri
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Law360 (September 10, 2020, 10:15 PM EDT) -- California Gov. Gavin Newsom has signed into law a bill broadening workers' access to paid sick leave for reasons tied to the coronavirus pandemic, saying it "fills in gaps" under an emergency federal law that left some workers ineligible for paid sick time.

Newsom on Wednesday signed Assembly Bill 1867, which gives all California workers who test positive for COVID-19 or have been exposed to the novel coronavirus that causes the disease access to paid sick time for the rest of 2020.

The governor's office said in a statement that the bill builds upon an April executive order that expanded the number of paid sick days that workers in California's food sector could access. It also supplements the state's existing paid sick leave mandate that enables workers to accrue paid sick time, according to the bill.

On the federal level, Congress in March passed the Families First Coronavirus Response Act, which in part required most companies with fewer than 500 employees to make two weeks of paid sick leave available to workers affected by the pandemic. The law expires at the end of the year.

Newsom's office said that A.B. 1867 "closes the gaps in paid sick days" that exists between federal law and Newsom's prior executive order by including large employers with over 500 workers as well as public and private entities that employ first responders and health care workers and chose not to cover their employees under the federal law.

"Helping employees stay home when they are sick is foundational in our response to COVID-19," Newsom said in a statement. "This bill fills in gaps in our federal and state paid sick days policy and gives our extraordinary employees a little more peace of mind as they take time to care for themselves and protect those around them from COVID-19. I look forward to continuing to work with the legislature and other partners to make more progress in this space."

The bill also allows California's Labor Commissioner to penalize employers for not providing sick days, according to the governor's office.

Gage Dungy, a Sacramento-based partner at Liebert Cassidy Whitmore whose practice includes counseling public agency employers, said that certain agencies who didn't provide benefits under the paid sick leave prong of the FFCRA, known as the Emergency Paid Sick Leave Act, will have to start doing so.

"If your agency utilized the discretionary authority provided under the [FFCRA] to exempt either emergency responders or health care providers from receipt of Emergency Paid Sick Leave benefits and did not provide a comparable contractual benefit to such employees, your agency must now provide those benefits to such employees under the Labor Code, where qualified, now that A.B. 1867 has become law," Dungy said.

The FFCRA was passed by Congress in March as coronavirus cases were first beginning to surge.

The law provides workers two weeks — up to 80 hours — off at full pay if they're sick or have to quarantine, and the same allotment at partial pay if workers have to care for sick family members or homebound children. The law also provides two weeks of unpaid time off followed by 10 weeks at partial pay to workers who can't work because their child's school or day care provider has closed.

The U.S. Department of Labor released a rule in early April setting standards for implementing the emergency paid leave mandate and attempting to resolve ambiguities in the law's text. In addition to fleshing out the eligibility triggers, the rule also clarified exemptions for small businesses and health care employers, among other things.

But the rule ran into legal hurdles, with a New York federal judge saying the agency didn't justify parts of the regulation in an August ruling that granted partial summary judgment to the state of New York, which sued to expand the rule.

The DOL is expected to soon issue an updated version of the rule, according to a recent posting by the Office of Management and Budget.

--Additional reporting by Braden Campbell. Editing by Haylee Pearl.

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