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SB 822 Budget Trailer Bill on Labor and Employment

A requirement to provide COVID-19 food sector supplemental paid sick leave

By Chris Micheli, August 28, 2020 10:15 pm

On August 27, Senate Bill 822 by the Senate Committee on Budget and Fiscal Review was amended to deal with “worker protections” by adding provisions of law to the Government Code, Health and Safety Code, and Labor Code.

Section One of the bill would add Section 12945.21 to the Government Code. The Department of Fair Employment and Housing must create a small employer family leave mediation pilot program for employers with between 5 and 19 employees. This group of employers or an employee within 30 days of certain notices may request all parties to participate in DFEH’s dispute resolution division.

When the employer receives a right-to-sue notice, that notice must include a written statement that describes the parties’ right to participate in the mediation pilot program, including information on the timeframe to request mediation. If the employer or employee requests mediation, then the employee cannot pursue any civil action until the mediation is complete.

DFEH must initiate the mediation promptly following the request. The employee’s statute of limitations for claims is to be tolled upon receipt of a request to participate in the DFEH’s dispute resolution division until the mediation is complete. And, the section defines “a mediation is complete when, at any time after the employer or employee’s request, the department notifies the parties that it believes further mediation would be fruitless.” This section is only in effect until January 1, 2024 as a 3-year pilot project.

Section Two of the bill adds Section 113963 to the Health and Safety Code. It provides that a food employee working in any food facility must be permitted to wash their hands every 30 minutes and additionally as needed.

Section Three of the bill adds Section 248 to the Labor Code. It defines “COVID-19 food sector supplemental paid sick leave,” “food sector worker,” “hiring entity,” and “IWC Wage Order”. A food sector worker is entitled to COVID-19 food sector supplemental paid sick leave as specified. First, a hiring entity must provide COVID-19 food sector supplemental paid sick leave to each food sector worker who performs work for the hiring entity if the food sector worker is unable to work for specified reasons.

The food sector worker is entitled to supplemental paid sick leave at the rate of 80 hours if the worker is “full time” or worked or was scheduled to work on average at least 40 hours per week in the preceding two weeks. Each hour of COVID-19 food sector supplemental paid sick leave must be compensated at a rate equal to the highest of specified amounts.

Nonetheless, a hiring entity is not required to pay more than $511 per day and $5,110 in the aggregate to a food sector worker for COVID-19 food sector supplemental paid sick leave taken by the worker. In addition, a hiring entity cannot require a food sector worker to use any other paid or unpaid leave, paid time off, or vacation time provided by the hiring entity to food sector workers before the worker uses COVID-19 supplemental paid sick leave.

The Labor Commission is required to enforce this section as if COVID-19 food sector supplemental paid sick leave constitutes “paid sick days,” “paid sick leave,” or “sick leave” under the Labor Code. All food sector workers will be considered employees. And, the requirement to provide COVID-19 food sector supplemental paid sick leave applies retroactively to April 16, 2020 and expires on December 31, 2020 or upon expiration of any federal extension of the Emergency Paid Sick Leave Act, whichever is later.

Section Four of the bill adds Section 248.1 to the Labor Code. It defines “covered worker” as those satisfying specified criteria, including those employed as a health care provider or emergency responder. The worker must leave his or her home or other place of residence to perform work for the person’s hiring entity.

A “covered worker” does not include specified individuals, such as those working at a food facility. A “hiring entity” means a private, sole proprietorship or any kind of private entity that has 500 or more employees in the United States. A covered worker is entitled to COVID-19 supplemental paid sick leave when the covered worker is unable to work due to specified conditions, such as being subject to a quarantine or isolation or is prohibited from working by the hiring entity due to health concerns.

A covered worker is entitled to specified hours of supplemental paid sick leave. For example, a covered worker is entitled to 80 hours if the covered worker satisfied specified criteria, including working full-time. There are provisions related to active firefighters and for covered workers who work a variable number of hours.

The Labor Commissioner must make publicly available a model notice for use by employers. The requirement to provide COVID-19 supplemental paid sick leave takes effect no later than 10 days after the date of enactment of this law. The requirement to provide this sick leave expires on December 31, 2020 or upon expiration of any federal extension of the Emergency Paid Sick Leave Act.

Section Five of the bill amends Section 248.5 of the Labor Code that deals with Labor Commissioner enforcement. The Commissioner can issue a citation against an employer who violates the law or by filing a civil action. If a citation is issued, the procedures for issuing, contesting, and enforcing judgments for citations and civil penalties issued by the Commissioner must follow existing law.

Section Six of the bill specifies that no reimbursement of local agencies is required under the bill. Section Seven of the bill appropriates $100,000 from the Labor and Workforce Development Fund to the Labor Commissioner for staffing resources to implement and enforce the provisions related to the COVID-19 supplemental sick leave and the COVID-19 food sector supplemental paid sick leave.

Section Eight of the bill specifies that SB 822 is a budget trailer bill and takes effect immediately upon the Governor’s signature. Section Nine of the bill only becomes operative if SB 1383 (Jackson) is enacted and takes effect on January 1, 2021.

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