On September 9, 2020, California Governor Newsom signed AB-1867 as emergency legislation, meaning the law became effective upon his signature, with no waiting period. The law has three distinct parts: it expands California’s supplemental sick leave provisions for food sector workers, creates a new handwashing break requirement for food sector employees, and creates a pilot mediation program for small employers.

AB-1867 is part of California’s larger effort to fill perceived gaps in paid sick leave mandates due to COVID-19.  In April 2020, Governor Newsom issued Executive Order N-51-20 mandating COVID-19 supplemental paid sick leave for food sector workers who would not be covered under the Family First Coronavirus Response Act because their employers had more than 500 employees.

AB-1867 codifies the sick leave benefit from Executive Order N-51-20. The law requires a hiring entity to provide a number of hours of COVID-19 food sector supplemental paid sick leave to each food sector worker who performs work for or through the hiring entity if that food sector worker is unable to work due to any of specified reasons relating to COVID-19. These reasons include the worker being subject to a quarantine or isolation order, the worker being advised by a health care provider to self-quarantine, or the worker being prohibited from working by his or her employer due to COVID-19 concerns.

The law permits the food sector worker to determine how many hours of this leave to use, up to the total number of hours to which the worker is entitled. Under the bill, the rate of compensation would be the highest of the food sector worker’s regular rate of pay in the last pay period, the state minimum wage, or an applicable local minimum wage, up to daily and aggregate total maximum payments. The supplemental paid sick leave benefit expires on December 31, 2020.

The handwashing provision of the law makes it a misdemeanor for a food sector employer to not permit employees to take specified handwashing breaks at a minimum of every thirty minutes.  Existing law established uniform health and sanitation standards for food, and requires food employees to keep their hands clean. In light of the COVID-19 pandemic, the law is designed to ensure that employees have enough break time to allow for frequent handwashing.  It is unclear how vigorously the law will be enforced by health inspectors, but food sector employers must be aware of this additional break obligation and implement it immediately.

Lastly, AB-1867 creates a small employer family leave mediation pilot program for employers with 5 to 19 employees. The employer or employee could choose to mediate disputes about family leave through the Department of Fair Employment and Housing’s dispute resolution service.