©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 41 CBA exemption. The PSL law previously offered a complete exemption for employees covered by a collective bargaining agreement (CBA) outside the construction industry, provided the CBA met certain specific requirements. As of January 1, 2024, however, no CBA is completely exempt from the requirements of the PSL law. As before, the definition of “employee” under the PSL law excludes any employee who is “covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for sick days or a paid leave or paid time off policy that permits the use of sick days for those employees, final and binding arbitration of disputes concerning the application of its paid sick days provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.”139 However, as of January 1, 2024, such “CBAexempted” employees (1) must be allowed to take sick leave for all of the reasons specified in the PSL law, (2) cannot be required to find a replacement worker as a condition of taking paid sick leave, and (3) are protected by the law’s anti-retaliation provisions.140 This change will impact CBA attendance provisions that apply instances of absence for use of available paid sick time. Co-existence with ordinances. As of January 1, 2024, the California PSL law preempts specific provisions of local PSL ordinances, including requirements regarding the lending of paid sick leave, paystub statements, methods of calculating sick pay, employee requirements to provide notice of foreseeable paid sick leave use, timing of payment of paid sick leave, and whether payment of sick leave is required upon termination.141 If a local ordinance contradicts the state law on these topics, the California PSL law requirement applies rather than the local law. However, the local PSL ordinances already in place in several California municipalities generally do not contradict the California PSL law on these specific points. Accordingly, the way remains mostly clear for California cities and counties to continue to enforce their own PSL ordinances that create employee entitlements and employer burdens beyond what California state law provides. Enforcement. Until a Covid-related 2020 amendment took effect as “urgency legislation,” enforcement of California’s PSL leave law was through administrative proceedings in which the Labor Commissioner could award relief after a hearing “containing adequate safeguards to ensure the parties due process, including reinstatement, back pay, payment of sick days unlawfully withheld, and additional sums in the form of an administrative penalty to employees whose rights were violated.”142 The 2020 amendments removed the “due process language” and simply provided that the Labor Commissioner “may order any appropriate relief, including reinstatement, backpay, the payment of sick days unlawfully withheld, and the payment of an additional sum in the form of an administrative penalty to an employee or other person whose rights under this article were violated.”143 The administrative penalties vary depending on the violation. If paid sick days have been unlawfully withheld, then the administrative penalty is the greater of the value of those sick days multiplied by three or $250, not to exceed an aggregate penalty of $4,000. For other types of violations the penalty is $50 per day while the violations continue, not to exceed an aggregate penalty of $4,000.144 2.14.2 Covid-19 Paid Sick Leave Legislators at national, state, and local levels all decisively addressed the effect of Covid-19 on workers, acting with general agreement that employers rather than governments should provide the desired relief. On May 5, 2023, the World Health Organization declared an end to the Public Health Emergency for Covid-19.145 On May 11, 2023, the U.S. Department of Health and Human Services followed suit.146 As of the time of publishing, there are no longer any Covid-19 specific mandates in effect in California. County and city ordinances. See Section 2.14.3, immediately following.
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