Today's Law As Amended


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AB-650 Employer-provided benefits: health care workers: COVID-19: hazard pay retention bonuses.(2021-2022)



As Amends the Law Today


SECTION 1.

 Part 4.6 (commencing with Section 1490) is added to Division 2 of the Labor Code, to read:

PART 4.6. Health Care Workers Recognition and Retention Act

1490.
 This part shall be known and may be cited as the Health Care Workers Recognition and Retention Act.
1491.
 The Legislature finds and declares all of the following:
(a) On March 4, 2020, Governor Gavin Newsom declared a State of Emergency in California as a result of the threat of COVID-19.
(b) Health care workers put themselves, their families, and their communities at risk every day to care for patients with COVID-19.
(c) Health care workers in California have been traumatized by an inundation of hospitalizations and deaths from COVID-19.
(d) Caring for COVID-19 patients has taken an emotional toll on workers who often serve as family surrogates for dying patients.
(e) Studies show that health care workers are at increased risk for exposure and infection relative to the general population, and, among health care workers, people of color face particularly high risks.
(f) California’s health care workforce is facing burnout from record hospitalizations, declining caregiver/patient ratios, longer work shifts, deferred time off, and the mental and emotional toll of the pandemic.
(g) Studies show that high health care workforce turnover is associated with decreases in quality of care, and that instability in the health care workforce has an adverse impact on continuity and quality of patient care.
(h) Retention bonuses paid to health care workers in recognition of their extraordinary service during the COVID-19 pandemic justly compensate them for the unique risks, efforts, and expenses they have borne and help to retain an essential and overextended workforce.
(i) Paying hazard pay retention bonuses to the health care workforce will help foster the public health by ensuring that health care workers are better able to care for themselves and their families, resulting in a more experienced, well-trained workforce capable of delivering safe, high-quality health care for the public as a whole.
(j) For these reasons, the Legislature has determined that public health, safety, and welfare are well served by requiring that health care workers are paid hazard pay retention bonuses.
1492.
 For purposes of this part, the following definitions apply:
(a) “Covered employer” means both of the following: (1) any person who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person, consistent with the definition of employer in Wage Order 5 and (2) is a covered health care provider or provides contracted services such as janitorial, laundry, security, or dietary services on the site of a covered health care provider.
(b) “Covered health care provider” includes a health care provider as defined in subdivision (b) of Section 6403.1 that employs 100 or more employees in the state, whether directly or through any parent company or affiliated entity.
(c) “Covered health care worker” means a worker that fulfills the following criteria:
(1) Provides direct patient care or services directly supporting patient care at or for any covered employer, and includes, but is not limited to, pharmacists, clinicians, nurses, aides, technicians, janitorial and housekeeping staff, security guards, food services workers, laundry workers, nonmanagerial administrative staff, and physicians if they are employees of a health care provider.
(2) Is or was employed by any covered employer as a health care worker at all of the following times:
(A) At any time in the 2020 calendar year.
(B) For at least 500 hours in the 2021 calendar year.
(C) At any time during the 2022 calendar year.
(3) A covered health care worker may aggregate employment across multiple covered employers to satisfy the minimum employment requirements in this subdivision.
(d) “Employ” means to engage, suffer, or permit to work.
(e) “Employee” means any person employed by an employer, consistent with the definition of employee in Wage Order 5.
(f) “Full-time” employment means to be employed as a covered health care worker by a covered employer an average of 32 hours per week from January 1, 2021, to December 31, 2021.
(g) “Less than part-time” employment means to be employed as a covered health care worker by a covered employer an average of less than 20 hours per week from January 1, 2021, to December 31, 2021.
(h) “Part-time” employment means to be employed as a covered health care worker by a covered employer an average of 20 hours per week from January 1, 2021, to December 31, 2021.
(i) “Wage Order 5” means the Order Regulating Wages, Hours, and Working Conditions in the Public Housekeeping Industry (Section 11050 of Title 8 of the California Code of Regulations).
1493.
 (a) The intent of the Legislature is that this part cover all health care workers who work at covered health care providers whether they are employed directly by that health care provider or are contracted to work at that health care provider through another covered employer.
(b) On January 1, 2022, April 1, 2022, July 1, 2022, and October 1, 2022, a covered employer shall pay hazard pay retention bonuses to each covered health care worker it employs as of that date, as follows:
(1) Two thousand five hundred dollars ($2,500) to each covered health care worker employed full-time.
(2) One thousand five hundred dollars ($1,500) to each covered health care worker employed part-time.
(3) One thousand dollars ($1,000) to each covered health care worker employed less than part-time.
(c) In calculating eligibility for the retention bonus and whether a covered health care worker is employed full-time, part-time, or less than part-time, hours employed shall be calculated based on the number of hours paid to a covered health care worker by a covered employer, including hours paid during any leave of absence as well as hours worked.
(d) The hazard pay retention bonuses shall be paid in addition to all other compensation due, including, but not limited to, salaries, wages, overtime, commissions, piece rates, rest breaks, meal breaks, paid leave, and reimbursement for employer expenses.
(e) The hazard pay retention bonuses shall not be considered part of the covered health care worker’s regular rate of pay or compensation.
(f) It shall be a violation of this part for any covered employer to discharge, lay off, or reduce any covered health care worker’s compensation or hours so as to prevent, in whole or in part, that worker from receiving hazard pay retention bonuses as provided in subdivision (b) in addition to all other compensation. If this part was a motivating factor in the covered employer’s decision to discharge, lay off, or reduce any covered health care worker’s compensation or hours, a violation has occurred.
(g) The covered health care worker’s current covered employer is responsible for paying the hazard pay retention bonuses pursuant to subdivision (b).
(h) A covered health care provider that awards service contracts, such as for janitorial, laundry, security, or dietary services, shall be responsible for reimbursing its contracted covered employers for the hazard pay retention bonuses paid pursuant to subdivision (b).
(i) (1) A covered employer may reduce the total sum of the hazard pay retention bonuses to be paid to a covered health care worker by an amount equal to any qualifying hazard pay and qualifying monetary bonus paid to the covered health care worker during the announced state of emergency relating to the COVID-19 pandemic.
(2) For the purposes of this subdivision, “qualifying hazard pay” or “qualifying monetary bonus” means compensation paid to a covered health care worker that meets all of the following criteria:
(A) The compensation was paid in addition to all other compensation due to the covered health care worker, including, but not limited to, salaries, wages, overtime, commissions, annual bonuses based on performance or financial targets, piece rates, rest breaks, meal breaks, paid leave, payouts resulting from performance sharing programs designed to provide employees with a share in performance gains, and reimbursement for employer expenses, as well as any other compensation that forms part of the covered health care worker’s regular rate of pay.
(B) The compensation did not result in any reduction, substitution, offset, or other diminishment of the covered health care worker’s current and prospective compensation.
(C) The compensation was not paid pursuant to law or to a collective bargaining agreement or other employment contract entered into prior to the start of the announced state of emergency relating to the COVID-19 pandemic.
(D) The compensation was not paid in response to operational needs of the employer, including, but not limited to, staffing shortages, recruitment needs, or overtime.
(E) The compensation was paid as COVID-19 specific hazard or bonus pay.
1494.
 (a) It is the intent of the Legislature that subdivision (f) of Section 1493 shall apply retroactively to March 1, 2021, because that retroactivity is necessary to serve the purpose of this part to retain experienced, well-trained health care workers.
(b) Other than subdivision (f) of Section 1493, this part is effective January 1, 2022.
1495.
 (a) Any covered employer who violates, or causes to be violated, the provisions of this part shall be liable in a court action for all wages owed under this part, and for a civil penalty in the amount of fifty dollars ($50) for each initial violation, and one hundred dollars ($100) for each subsequent violation.
(b) Any covered health care worker receiving less than the legally required wages required by this part may recover in a civil action the unpaid balance of the full amount of these wages, including reasonable attorney’s fees, costs of suit, and interest. Interest shall be calculated beginning with the effective date of this part, and not before that date.
(c) In addition to recovery of penalties under this part in a court action or proceedings pursuant to Section 98, the commissioner may issue a citation against a covered employer or other person acting on behalf of the covered employer who violates this part for any amount to be determined to be due to a covered health care worker. The procedures for issuing, contesting, and enforcing judgments for citations or civil penalties issued by the commissioner shall be the same as those set forth in Section 1197.1. Amounts recovered pursuant to this part shall be paid to the affected employee.
(d) In any action brought by an employee to enforce rights provided in this part, the court shall award reasonable attorney’s fees and costs to a prevailing employee as set forth in Section 218.5.
(e) In any action brought by an employee to enforce rights provided in this part, the court shall award interest due on unpaid wages as set forth in Section 218.6.
1496.
 (a) The hazard pay retention bonuses required by this part shall be provided in addition to, and notwithstanding, any other wages, penalties, or other payments required by any other applicable law or contract.
(b) The rights and remedies of this part are cumulative, nonexclusive, and in addition to any other rights and remedies afforded by contract or other provisions of law.
1496.1.
 (a) A covered employer may seek an exemption in whole or in part from the requirements of Section 1493 based on an inability to pay. This request for an exemption shall declare that the covered employer cannot afford to provide the retention bonus and shall propose whether the employer will pay some or all of the required amount.
(b) For a private employer, the commissioner shall make a determination of whether to grant the exemption based on an affidavit from the covered private employer, submitted under penalty of perjury, in which the covered private employer declares that all the following are true and accurate:
(1) Neither the covered health care provider nor any parent company have paid shareholder dividends or engaged in the repurchase of its own stock in the two years prior to the application.
(2) The ultimate parent company of the covered health care provider had a negative total margin in each of the ultimate parent company’s two fiscal years preceding the implementation date of this part.
(3) Neither the covered health care provider nor any parent company had operating revenues of more than one billion dollars ($1,000,000,000) in the fiscal year preceding the implementation date of this part.
(c) The affidavit and the commissioner’s determination shall be considered public records that may be disclosed pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).
(d) The commissioner shall require the covered employer to pay an amount, not to exceed the reasonable administrative costs determined by the commissioner, of making a determination on behalf of the covered employer pursuant to this section.
(e) A covered health care provider that obtains an exemption from the commissioner pursuant to this section may be eligible to receive grant moneys from a Health Care Worker Recognition and Retention Fund or other fund created by the Legislature with the intent of providing hazard pay or bonuses to health care workers, upon meeting the requirements for disbursements from that fund, as described in Section 1496.2.
1496.2.
 Upon creation of a Health Care Worker Recognition and Retention Fund or other fund created by the Legislature for the purpose of providing hazard pay or bonuses to health care workers, a health care provider, such as a community health center, that is not considered a covered health care provider for purposes of Section 1493, may be eligible to apply for and receive grant moneys from the fund, so long as that health care provider meets the other requirements for disbursements from that fund. Those grants shall be used to pay bonuses to health care workers.
1497.
 This part shall become inoperative on December 31, 2023.
SEC. 2.
 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 3.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.