The City of San Diego enacted emergency ordinances requiring fair employment practices in response to job and economic insecurity due to the COVID-19 pandemic and stay-at-home directives.  The City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance (“Recall Ordinance”) and the City of San Diego COVID-19 Worker Retention Ordinance (“Retention Ordinance”) went into effect immediately upon their passage on September 8, 2020. The Ordinances apply to three categories of businesses and employers that the City found have been especially impacted by the COVID-19 pandemic:

  1. Commercial Property Employer: defined by ordinance as an owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee, of a non-residential property located within the geographical boundaries of the City of San Diego that employers 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a Commercial Property business or employer are covered by the Ordinance.
  2. Event Center Employer: defined by ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: defined by ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

Under the Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for no less than 90 days, provided the successor employer continues operating for 90 days unless there is cause for termination (which the Ordinance does not define). Once the 90 days have elapsed, the successor employer must perform a written performance evaluation for each eligible employee retained pursuant to the Retention Ordinance.

The Ordinances will remain in effect for six months. However, they could be repealed by January 1, 2021, depending on whether Gov. Gavin Newsom signs pending Assembly Bill 3216 into law, which would provide similar worker protections statewide.

Jackson Lewis’ Coronavirus Task Force will continue to monitor these ordinances and other emergency regulations pertaining to COVID-19. If you have questions or need assistance, please contact the authors or your favorite Jackson Lewis attorney.

Governor Newsom signed Senate Bill 1159 (“SB 1159”) on September 17, 2020, which could expand the definition of injury under the workers’ compensation system to include illness or death resulting from COVID-19. In May, the governor had issued an executive order which created a presumption that any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of employment to award workers’ compensation benefits if certain conditions were met. However, this Executive order expired in July.

Similar to the prior Executive Order, SB 1159 creates a disputable presumption that COVID-19 injuries arose out of and in the course of employment and are compensable. The bill also makes a claim relating to a COVID-19 illness presumptively compensable, as described above, after 30 days or 45 days, rather than 90 days.

The bill also allows for the presumption of injury for employees whose coworkers test positive for COVID-19. This presumption will remain in effect until January 1, 2023.

As this bill includes an urgency clause, it goes into effect immediately.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to coronavirus (“COVID-19”).  AB 685 also authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard. AB 685 also authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with precitation requirements.

Notification Requirements

Current California law requires employers to report certain occupational injuries and illnesses to Cal OSHA within a prescribed period. AB 685 confirms employers must report COVID-19 cases to the agency that satisfy Cal OSHA’s definition of a serious injury or illness. To satisfy this requirement, employers must have a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19. Employers must also assess any employee COVID-19 case to determine whether reporting on the case is required under Cal OSHA regulations.

Along with notifying Cal OSHA of a COVID-19 case that meets the definition of a serious occupational injury or illness, AB 685 requires employers having notice of a potential COVID-19 exposure (e.g., individual testing positive for COVID-19 was in the workplace) provide a written notice to:

  • employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result; and,
  • employees’ exclusive representative, if applicable.

This notice must be provided within one business day of the employer being notified of a potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message. The notice should be drafted to protect employee privacy and without disclosure of personally identifiable information or personal health information. The notice should also include information on COVID-19 benefits the employee may be entitled to and the disinfection and safety plan the employer has implemented or plans to implement in accordance with guidance from the Centers for Disease Control and Prevention (“CDC”).

An employer may also need to notify its local public health department of COVID-19 cases if the number of cases the employer knows about meets the definition of a COVID-19 outbreak as currently defined by the California State Department of Public Health. Upon an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide information on the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information. Employers will then need to keep working with the local health department and provide updates on new laboratory-confirmed COVID-19 cases.

Notifications required under AB 685 do not alter or change the work-relatedness determination for COVID-19 cases under Cal OSHA regulations. AB 685 further requires that employers maintain records of written notifications for at least three years.

Enforcement Procedures

AB 685 authorizes Cal OSHA to act when, “in its opinion,” employees are exposed to COVID-19 in such a manner as to constitute an imminent hazard by:

  • Prohibiting entry or access to a worksite;
  • Prohibiting performance of an operation or process at the worksite; or
  • Requiring posting of an imminent hazard notice at the worksite.

In treating an employer’s worksite as having an imminent hazard to COVID-19, Cal OSHA must limit its restrictions on the employer’s worksite to the immediate area where the hazard was identified. In addition, Cal OSHA’s restrictions must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” These provisions will sunset on January 1, 2023.

Cal OSHA regulations require a strict process for “serious violations,” in which Cal OSHA creates a rebuttable presumption of a serious violation following an inspection, which is then shared with the employer and the employer is given a chance to rebut. The employer’s rebuttal may then be used in defense of the violation in an appeal or hearing on the matter. Generally, this procedure is satisfied by Cal OSHA sending a standardized form containing descriptions of the alleged serious violation and soliciting information in rebuttal of the presumption to the employer at least 15 days before issuing the citation. For COVID-19 hazards and violations only, AB 685 streamlines this process by allowing Cal OSHA to issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption of a serious violation.  Accordingly, Cal OSHA would not need to notify an employer 15 days before issuing a serious violation related to COVID-19. This exemption will be repealed on January 1, 2023.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

Days before the upcoming deadline, ICE has announced it is extending the remote virtual verification option for completion of I-9 employment verification an additional 60 days (instead of just 30 days), until November 19, 2020, due to continued precautions related to the COVID-19 pandemic.

Pursuant to the original guidelines for virtual verification, eligible employers may continue to inspect Section 2 documents without an actual in-person physical inspection (e.g., over video link, fax, or email). As before, the policy applies only to employers and workplaces that are in fact operating remotely. The latest announcement states that if any employees are physically present at the worksite, in-person physical inspection of the I-9 documentation must occur. In past announcements, however, ICE has indicated that it would use a case-by-case analysis to determine if the virtual I-9 review was reasonable. How and whether ICE will be reasonable is yet to be seen. Rather than using virtual inspection, employers still have the option of using agents or authorized representatives to review I-9 documentation at remote locations.

Keep in mind that all employees who were onboarded virtually must report within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) from the date the government policy ends.

Jackson Lewis attorneys are available to assist you in creating “best practices” regarding I-9 compliance and preparing for possible upcoming investigations and audits.

On September 9, 2020, the Governor signed Assembly Bill 1867 (“AB 1867”) which mandated both food sector employers and other industries, including employers with 500 or more employees, to provide supplemental paid sick leave (“COVID-19 Supplemental PSL”). The California Labor Commissioner, charged with enforcement of the new laws, has issued a Frequently Asked Questions Page (“FAQ”) regarding both new supplemental leaves.

What are some of the key clarifications?

  1. The Labor Commissioner clarifies that the food sector worker sick leave that was previously required per the Governor’s Executive Order (“E.O.”) issued on April 16, 2020, is now codified by AB 1867 under Labor Code Section 248. Non-food sector employers were provided a “10-day grace period” from the enactment of the law. The FAQs make clear that non-food sector employers must begin providing COVID-19 Supplemental PSL starting September 19, 2020.
  2. The Labor Commissioner also clarifies that being “subject to a Federal, State or local quarantine or isolation order” does not include the state’s stay-at-home order but is referring to an order that is specific to the worker’s circumstance. For example, an order that directs an individual who lives with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking COVID-19 Supplemental PSL.
  3. The Labor Commissioner also stated that a hiring entity cannot deny a worker COVID-19 Supplemental PSL based solely on a lack of certification from a healthcare provider. However, a hiring entity may reasonably ask for documentation before paying the sick leave if it has other information indicating the worker is not requesting COVID-19 Supplemental PSL for valid purposes.
  4. The FAQs detailed that food sector workers, including both employees and independent contractors, have a right to COVID-19 Supplemental PSL under the prior E.O. and now under the new Labor Code 248. However, COVID-19 Supplemental PSL for non-food sector workers does not apply to independent contractors.
  5. The Labor Commissioner also explained that public employers are not required to provide COVID-19 Supplemental PSL.
  6. The FAQs highlighted that firefighters who were scheduled to work more than 80 hours in the previous two weeks, can take as many hours as they were scheduled, but they are limited to the maximum of $511/day or $5,110/total pay.
  7. The Labor Commissioner also provides a more detailed explanation of the calculation of leave entitlement for part-time workers who do not have a set schedule. The Labor Commissioner provides the calculations for both a part-time worker with a variable schedule who have worked for the employer for more than 14 days and less than 14 days, which was not clear in the legislation. The Labor Commissioner confirmed that a worker that is considered full-time (40 hours/week) is entitled to 80 hours of COVID-19 Supplemental PSL.
  8. The Labor Commissioner also clarifies that for a food-sector employer to receive credit for providing COVID-19 related paid sick leave, the employer must:
  • have had an existing supplemental paid benefits program as of April 16, 2020;
  • have paid a worker at a rate equal to or greater than what the worker is entitled to under California law.

Such a supplemental paid leave program includes those that provided supplemental paid sick leave under the E.O or a policy that provided the same or better supplemental sick leave benefits.  Policies that do not meet the requirements of the E.O.—including those that partially, but do not fully, replace a worker’s pay (up to $511 per day); which provide fewer hours of leave than the E.O; or that do not provide a paid benefit for COVID-19-related reasons—do not meet the criteria to receive a credit. Employers may always provide greater benefits to their workers.

For non-food sector employers seeking a potential credit for prior supplemental sick leave policies, the employer must have had an existing supplemental sick leave program enacted after March 4, 2020, and before September 19, 2020.

Additionally, an employer that provided COVID-19 related paid sick leave pursuant to a local paid sick leave ordinance may count that time towards its obligation under COVID-19 Supplemental PSL. If the local law provides a different rate than what is required under COVID-19 Supplemental PSL, the employer must provide the higher rate to comply with both laws. The non-food sector employers can retroactively provide supplemental pay for certain sick leave paid to employees if below the current requirement. While the food sector employers do not have such a right since they were subject to the E.O.

  1. The Labor Commissioner also states employers are required to display the applicable poster(s), in a conspicuous place that contains information about COVID-19 Supplemental PSL. The Labor Commissioner has also released model notices for the Supplemental Paid Sick Leave for Food Sector Workers and Supplemental Paid Sick Leave for Non-Food Sector Employees. The FAQ notes that if covered workers do not frequent a workplace, the employer may satisfy the notice requirement by providing notice through electronic means.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

Judge Amit Mehta in Gomez v. Trump ordered the Department of State (DOS) to make good faith efforts to “expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications” and issue visas to those eligible by September 30, 2020 – the deadline for the Diversity Visa program.

In response, DOS has issued guidance, but the agency’s “good faith” efforts will not be good enough for many DV applicants. Indeed, DOS said that it does not expect to be able to accommodate everyone. Embassies and consulates have been told they may begin processing DV applications where local health conditions and post resources allow.

Here is the DOS priority list:

  • The named plaintiffs in Gomez
  • Applicants who were already interviewed and are seeking reissuance
  • Applicants whose appointments in March, April, and May were cancelled
  • Applicants with cases pending at the KCC are at the bottom of the list

DOS has advised:

  • DV applicants who had previously scheduled appointments (even if cancelled) are directed to reach out to the relevant embassy or consulate for information about their case.
  • If a post is unable to process cases, an applicant may request a transfer to another post by reaching out to the desired post directly – but not all transfer requests will be accommodated.
  • DV applicants who had valid visas on April 23, 2020 (and therefore, are exempt from the Presidential Proclamation), but could not travel and now have expired visas, may apply to have their visas reissued before the September 30 deadline.
  • Because the 14-Day COVID-19 bans were not part of the Gomez case, DV applicants who are subject to the 14-Day COVID-19 bans (China, Iran, the Schengen Zone, UK and Ireland, and Brazil) may be interviewed, but visas will not be issued to them unless they are exempt or fall within an exception to the those bans.

Once a Diversity Visa is issued, the applicant must be able to enter the United States before the visa expires. In addition:

  • Those who fall within an exemption or exception to the July Presidential Proclamation or the 14-Day COVID-19 bans should be able to enter if their visas are issued.
  • Because immigrant visas generally expire when the underlying medicals expire, applicants may opt to submit a new medical exam with a later expiration date.
  • While there is not much time left and the logistics may not work, it is possible for individuals who are subject to a 14-Day COVID-19 ban to try to wait it out in a non-banned country prior to their visa appointment.

Jackson Lewis attorneys are available to assist with any questions regarding the new DOS guidance.

The Trump Administration’s effort to end Temporary Protected Status (TPS) for approximately 250,000 people from El Salvador, Nicaragua, and Sudan has been upheld in a split ruling from U.S. Court of Appeals for the Ninth Circuit in Crista Ramos, et al. v. Wolf, et al. TPS for Honduras and Nepal likely will be affected by this ruling as well, adding approximately 57,000 and 9,000 beneficiaries, respectively.

While the Ninth Circuit also upheld termination of TPS for individuals from Haiti, a separate injunction currently preventing the termination of TPS for Haiti remains in place and is not affected by the Ninth Circuit Order.

These work-authorized beneficiaries, many of whom have been in the U.S. for more than two decades, are thoroughly entrenched in their communities, have homes, jobs, and as many as 200,000 U.S.-born children.

As part of an anti-immigration platform, the Trump Administration has been working to terminate TPS for many countries since 2017. In 2018, California Federal Judge Edward M. Chen issued a nationwide preliminary injunction. He explained that the equities definitively favored the plaintiffs, many of whom have U.S. citizen children who know no other home than the one they have here. The plaintiffs were facing a “Hobson’s choice” of leaving the country without their children or leaving with their children and depriving them of their lives in the U.S. The Judge also found the U.S., rather than suffering harm from the continuation of TPS, might suffer economic harm due to the TPS terminations. Such prospective harms could include: $132 billion loss in GDP and $5.2 billion loss in Social Security and Medicare contributions – this was before the current economic crisis brought on by COVID-19. The Judge also found that terminating TPS could lead to $733 million in turnover costs in industries that employ TPS beneficiaries: “construction, hospitality, food service, landscaping, home health care, child care and retail . . . .”

On the basis of Judge Chen’s injunction, the Department of Homeland Security (DHS) has been extending TPS or TPS employment authorization while the case has made its way through the appeals process. On November 4, 2019, DHS again extended TPS-related forms and documents until January 2, 2020. The agency announced that if the government prevailed in its challenge to the injunction, there would be a wind down period of at least 120 days to allow for an “orderly transition.”

The purpose of the wind down period was to give the beneficiaries some time to prepare to leave the country or seek some other status in the United States. For many, this will include not only making wrenching choices about their children, but also selling homes during a pandemic or facing possible deportation. While it is possible for some TPS beneficiaries to change status, adjust status to permanent resident, or apply for asylum, the options are limited.

Plaintiffs likely will appeal the ruling and seek to maintain the status quo until all appeals are finalized. Numerous employers will be affected by this ruling, as TPS beneficiaries provide valuable labor in job sectors where workers are scarce, such as the construction, landscaping, and food services industries.

Jackson Lewis attorneys will continue to follow this case and are available to assist with strategies and discuss options to deal with the current TPS situation.

Last month a New York federal court left health care providers in a lurch, when it vacated the Department of Labor’s definition of who could be exempted as a health care provider from the FFCRA leave obligations. Thankfully, the DOL has stepped back in to provide further clarity on this issue, providing revisions and clarifications to its FFCRA Temporary Rule. For more information about the revisions, click here.

The FFCRA which requires certain employers to provide paid sick leave and expanded FMLA to its employees provides an exception for health care providers. Under the revised rule, the DOL explains that the health care providers that an employer can elect not to cover under the FFCRA include:

  1. Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
  2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the State and performing within the scope of their practice as defined under State law;
  3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
  4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
  5. Any other employee who is capable of providing health care services, meaning he or she is employed to provide:

● diagnostic services (taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results);

● preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);

● treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments); or

● other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).

The revised rule further explains that the types of employees falling under this last category include only:

A.  Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in 5 above;

B.  Employees providing services described in 5 above under the supervision, order, or direction of, or providing direct   assistance to, a person described in numbers 1-4 above or A above; and

C.  Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.

The DOL further clarified that employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.

The revised Rule recognizes that individuals who fall under this health care provider exemption may work, among other places, at a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. But the DOL explained that an employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an employee is a health care provider.

The DOL’s revised Rule provides welcome relief and clarity to employers. Although it is not immune to further legal challenge, the DOL appears to have addressed the issues raised by the New York court. Employers are nonetheless wise to seek legal counsel with respect to how the various FFCRA requirements might apply in an individual circumstance.

Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.

The New Jersey Department of Labor and Workforce Development (NJDOL) has issued final regulations related to the COVID-19 Job Protection Act signed into law on March 20, 2020.

The law generally protects employees from adverse actions when they take or request time off at the written or electronic recommendation of a medical professional licensed in New Jersey, because they have or are likely to have an infectious disease that may infect others in the workplace. Read our article here.

On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”) which has three new laws combined into one bill. The bill covers supplemental sick leave requirements, a pilot mediation program for small employers, and mandated hand washing requirements for food workers.

Food Sector Workers Supplemental Sick Leave

When Governor Newsom issued Executive Order (“EO”) N-51-20 mandating supplemental paid sick leave for food sector workers, it was uncertain whether the governor had the authority to issue such an EO. AB 1867 resolved those concerns by adopting many parts of the governor’s EO and making the law retroactive to April 16, 2020, when the EO was issued. AB 1867 also clarifies the definition of a “food facility” to include all sections of Health and Safety Code Section 113789. Previously, the Food Sector Worker EO only listed subsections (a) and (b) of the code, leaving out subsection (c) which stated what did not qualify as a “food facility.” AB 1867 includes subsection (c) providing clarity to whether an employer is covered.

               Who is a “Food Sector Worker”?

AB 1867’s definition of food sector worker is similar to that of the Food Worker Sick leave EO. A major change to the definition of eligible food sector worker is that a  worker no longer must qualify as an essential critical infrastructure worker.

Another change in AB 1867 from the Food Sector Worker EO was that the EO set to expire at the time of expiration of any statewide stay-at-home orders issued by the State Public Health Officer. However, AB 1867 expires in line with the federal Families First Coronavirus Response Act (“FFCRA”) on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Importantly, AB 1867 also made clear that employers who had provided supplemental sick leave since the pandemic may take a credit for their previously provided supplemental sick leave if it is equivalent or exceeds AB 1867’s requirements.

               What Time Off Is Provided?

Like the Food Worker Sick leave EO, AB 1867 requires covered employers to provide full-time employees eighty (80) hours of paid time off and part-time employees a proportionate time off for the following reasons:

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

Unlike the Families First Coronavirus Response Act (“FFCRA”) and other supplemental paid sick leave ordinances in California,  AB 1867 does not provide leave for those caring for a family member who is quarantined or sick or caring for a minor child whose school or childcare has closed due to COVID-19.

COVID-19 Supplemental Paid Sick Leave Law

Additionally, AB 1837 establishes COVID-19 supplemental paid sick leave for workers outside of the food sector, including certain employees employed by private businesses with 500 or more employees in the United States.

The new law also covers employees who were excluded from coverage under the FFCRA as a health care provider or emergency responder. Food sector workers are excluded if they already qualify for the food sector worker benefit discussed above. There are also unique rules regarding fire departments and forestry in the new law.

Generally, eligible employees can take this new COVID-19 supplemental paid sick leave for similar reasons as discussed above for food sector workers and at similar rates.

The law requires the Labor Commissioner to make publicly available a model notice for purposes of complying with the posting requirements. The law permits notice to be provided to employees by electronic means in lieu of posting, only if a hiring entity’s covered workers do not frequent a workplace.

The new COVID-19 supplemental paid sick leave may expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.


The new law requires a food sector worker working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed. This codified a similar requirement set forth in the Food Sector Worker EO.

Small Employer Family Leave Mediation

Assembly Bill 1867 also requires the Department of Fair Employment and Housing (“DFEH”) to create a small employer family leave mediation pilot program for employers with 5 to 19 employees. The pilot program would authorize a small employer or the employee to request to participate in mediation through the DFEH’s dispute resolution division after notice. The bill prohibits an employee from pursuing civil action until the mediation is complete if an employer or employee requests mediation. The bill also tolls the statute of limitations for the employee, including for additional related claims, from when a request to participate in the program is received until the mediation is complete or ended. These provisions of the bill would be repealed on January 1, 2024.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson