Episode 90: New Law Creates Supplemental Sick Leave

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's general counsel and executive vice president. And back on the podcast today is Jennifer Shaw of the Shah Law Group to discuss another change that employers need to be aware of, and that is AB 1867, which basically expand the governor's executive order for supplemental sick leave related to COVID 19. Welcome back, Jennifer.

Thank you, Erica. Thanks for having me.

Always a pleasure. Now, Jennifer, AB 1867 is kind of an interesting one because.

It'S intended to close those gaps between the federally mandated COVID 19 FFCRA sick leave provisions and the governor's previous executive order, plus more. It's kind of this potpourri of sick leave Benefits related to COVID 19, but only applies to a certain segment of the business community.

Right. It's really interesting actually, because when the governor issued this executive order back in April 2020. Right. Just a few months ago.

The point of the executive order was to grant special sick leave benefits, paid sick leave to certain food service and food industry workers who were affected by COVID 19. And of course, the point was these tend to be lower wage earners. They may be disincentivized to take sick leave. So the governor was saying, look, let's make it safe for them to take sick leave. And the interesting thing is this applied to employees of workers or of employers who had 500 or more workers. So like you said, it was closing the gap between the FFCRA, which only applies to businesses with fewer than 500 workers. Well, then the legislature got involved and said, okay, well we want to make sure that not only food service workers are protected but that we have other employees of employers with 500 or more workers are going to be entitled to this sick leave. So that's the main thrust of the bill, as you said, or the new law. There are a number of provisions, but one of the things for folks to sort of get off the bat is that now all employees are going to be eligible for this paid sick leave. It doesn't matter how big or small.

The employer might be, provided they're in those industries. So for example, the health care providers and emergency responders who were basically carved out of the FFCRA, the federal provision, are included in AB 1867. So those employees would now be entitled to this Covid related paid sick leave.

Correct? That's absolutely right. So the other thing about this, Erica, is that there are a number of requirements, I mean, a poster, a notice, things that are common when these kinds of laws are passed. There are also provisions that say, okay, if somebody has already provided this kind of leave to an employee, then they don't have to give an additional 80 hours. So there was some recognition that employers might have already given the eight hours of sick leave to certain employees who needed that time due to Covid. So that's an important thing, I think, for folks to remember is that there is some recognition that some of these larger employers may already have given this leave.

That's right. And for those of you who are out there listening kind of trying to figure out whether this expanded paid sick leave applies to you or not, and if you extended FFCRA or applied the provisions of ffcra, talk to union legal counsel, because there are some little fine ambiguities within the law that haven't been clarified. Now, remember the California Labor Commissioner's office, they did issue FAQs when the governor issued his executive order mandating sick leave for food sector employers and employees. It remains uncertain yet if the labor commissioner is going to provide additional FAQs. She does have seven days from the enactment of the bill to issue a notice. Remember, a notice was issued for the governor's executive order paid sick leave. I don't know if the notice is going to be new or different because AB 1867 has so many more nuggets to it. I would imagine that it would be Also something interesting, Jennifer, with regards to this bill is, you know, we've talked about this before in the context of, you know, when laws are signed by the governor, typically they don't take effect until January 1st. That's not the case with this one, is it?

You're absolutely right, Erica. This law is what's called urgency legislation or emergency legislation. So it's going to become effective on September 19th. So it's not the type of thing that employers have to wait until January or get to wait until January. I suppose I should say this law will become effective right away. And you know, you made a very important point earlier that it's not that this sick leave applies to everyone. It's still narrowly focused on the food sector and some other folks who are covered by the healthcare industry. But because of the ambiguities that you've already mentioned, there are some questions about who actually is covered. So it's really important for all of the listeners to take a look at the text of the law and really figure out if there's any way that they could be covered.

That's absolutely right. And there's been so much in the news about the federal family Coronavirus Response Act. That's the FFCRA that we were talking about and Jennifer had mentioned at the beginning applying to employers with less than 500. Just as a reminder, you know, that law not only provided 80 hours of paid sick leave, which is comparable to what AB 1867 is providing, but it also allowed for time due to school closures. And it's really important to note that this law, the California legislation that we're talking about, does not allow to use the sick leave for school closure purposes.

That's correct. It's much more narrowly drafted, Erica. And you know, the other thing the listeners should remember is that the court in the Southern District of New York just a couple of weeks ago actually invalidated a number of the FFC CRA provisions. And now the Department of Labor has issued new FAQs. I don't know about the rest of you, but my hair is on fire trying to stay up with all this. And when you look at the new regulations, there are a lot of changes that are actually going to matter, one of which is that exception for healthcare providers has been significantly narrowed, really to the definition that is used in the Federal Family and Medical Leave act, someone who's actually could provide a medical certification. So what I want the listeners to really understand here is all of these laws that we talked about on the podcast, all the obligations that employers have, they are not static, they change. So you have got to have folks in your organization who are responsible for managing these changes and staying on top of what's going on. It's a lot. And there are a number of, of course, blogs and webinars that folks can participate in. I'll be honest, I've been dismayed by many of them because they have incorrect information, they're misleading to employers. So, you know, I'm very grateful for the work that the Chamber does so that we know that it's accurate information that is out there because you can't always rely on what you're reading and what you're hearing.

That's really important. And part of it is just the mere speed that these changes are coming and the constant changing. Just like you said, Jennifer, with the FFCRA Department of Labor's Q and A. I mean, I'm a paper person. I like to print my regs and my guidelines and, you know, I keep redoing my binder because these FAQs continue to change. And particularly for those healthcare providers who are listening, really reach out to someone to give you a hand with this because as Jennifer mentioned, the FFCRA initially really limited the definition of healthcare provider, I should say was so broad it was almost it was difficult to wrap your head around the fact that if you really gave a literal reading of the definition of healthcare provider, just by working for a healthcare like a dental office, you were extending. And that certainly, I'm guessing, wasn't the intent. So of course the FAQs have narrowed it back. But trying to make sense between the FSCRA's definition and then now California and whether you extended leave under FSCRA or you're going to provide it to under the California is a lot to handle. One thing we should mention, Jennifer, is when this law actually sunsets.

So the interesting thing is it's going to sunset at the end of the year. Right. Just the way the Family's First Coronavirus Response act is going to sunset. Now, that doesn't mean that the legislature won't pass some legislation to continue it, but everything is sort of been anticipated to be done at the end of December. Now, what's interesting is I just heard this morning driving to work that there are a number of vaccines, of course, that are coming out of the third stage of trial and they are thinking that there may be vaccines available by the end of the year. So I think a lot is riding on where we're going to be as a world and as a community as of 1231 of this year. Because if we're not where we need to be, I would fully anticipate Congress and the California Legislature to extend these laws.

Well, and to that point, there is a little small provision in AB 1867 that basically says it's either going to sunset when, like you said, FFCRA sunsets, but if FFCRA is extended by Congress, then so will this. It's got a little kind of is riding the coattails of the federal law, so to speak.

That's right, Erica. There won't actually have to be action by the legislature. You're absolutely right about that.

Yeah. Yeah. So again, Christmas time could be interesting for all of us for a variety of reasons. But as we start to enter the cold and flu season, as we start to, you know, some of us in counties in California that can start to have modified openings, you know, this is a lot to remember and to take into consideration with your employees on top of all of the health and safety protocols we need to follow right now. So again, I encourage all of you, reach out to Jennifer Shah and her law firm, reach out to your compliance officers. Like Jennifer said, keep checking with the chamber to make sure that you're getting the resources that you need to be able to comply. Any other closing remarks, Jennifer, you wanted to add before we say goodbye?

Well, Erica, I just want to say that I know that some of the listeners are probably frantically taking notes and worried right now. One thing I will say is I've had a couple of conversations with plaintiffs attorneys this week who have actually said, you know what, we're not rushing out to file lawsuits on these things. We know everybody's doing their best. I do think people are showing a little more grace than we sometimes do. So I suppose that if employers can just buckle down and try to learn what they need to learn as soon as possible, all could be well with the world.

Oh, I sure hope you're right. That's a nice way to close today. Again, I'm trying to remain optimistic, but, you know, it just gets harder and harder. So I'm going to hold on to that. And I appreciate you sharing that with everyone. And once again, Jennifer, thank you so much for being part of our workplace podcast. It's really a delight to have you.

Well, thank you, Erica. I love being here.

And thank you all to our dedicated listeners and even those who might be joining us for the first time. We appreciate you joining us on the workplace. And we encourage you to comment, share and subscribe to Cal Chambers Podcast by visiting calchamber. Com.