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

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Date Published: 04/12/2021 09:00 PM
AB650:v97#DOCUMENT

Amended  IN  Assembly  April 12, 2021
Amended  IN  Assembly  March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 650


Introduced by Assembly Member Muratsuchi
(Coauthors: Assembly Members Kalra and Rodriguez)

February 12, 2021


An act to add Part 4.6 (commencing with Section 1490) to Division 2 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 650, as amended, Muratsuchi. Employer-provided benefits: health care workers: COVID-19: hazard premium pay. pay retention bonuses.
Existing law, the Healthy Workplaces, Healthy Families Act of 2014, requires employers to provide an employee, who works in California for 30 or more days within a year from the commencement of employment, with paid sick days for prescribed purposes, to be accrued at a rate of no less than one hour for every 30 hours worked. Existing law authorizes an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. Existing law charges the Labor Commissioner, who is the Chief of the Division of Labor Standards Enforcement, with enforcement of various labor laws.

This bill, the Health Care Workers Recognition and Retention Act, would require a health care provider, as defined, to pay hazard premium pay in the amount of $5 per hour to each of its health care workers for each hour of work performed. The bill would define “health care provider” for purposes of these provisions to include specified types of licensed clinics, outpatient settings of a health facility, physician’s offices, home health agencies, and various other medical service entities, if owned and operated by a person or other entity with 100 or more employees in the state, subject to certain exceptions.

This bill, the Health Care Workers Recognition and Retention Act, would require a covered employer, as defined, to pay hazard pay retention bonuses in the prescribed amounts on January 1, 2022, April 1, 2022, July 1, 2022, and October 1, 2022, to each covered health care worker, as defined, that it employs.
The bill would provide this that hazard pay is retention bonuses are in addition to all other compensation due and is are not part of the health care worker’s regular rate of pay or compensation. The bill would make it a violation of these provisions for a health care provider to reduce a covered employer to discharge, layoff, or reduce a covered health care worker’s compensation or hours so as to prevent that worker from receiving hazard pay, pay retention bonuses, as specified.
The bill would state the intent of the Legislature to make these provisions apply retroactively to the payment of hazard premium pay beginning January 1, 2021. The bill would require a health care provider, to the maximum extent permitted by law, to be required to pay back hazard premium pay, retroactively to January 1, 2021, to each health care worker it employs who is entitled to that payment and has not received it. that the provisions regarding the discharge, layoff, or reduction in a covered health care worker’s compensation or hours in order to avoid paying the bonuses as being a violation of these provisions be retroactively applied to March 1, 2021. The bill would make these provisions inoperative when the state of emergency relating to the COVID-19 pandemic terminates, as specified.
The bill would make a health care provider covered employer who violates these provisions liable for wages, civil penalties, and reasonable attorney’s fees and costs, as specified. The bill would also authorize the commissioner to issue a citation against a health care provider covered employer or other person acting on behalf of the health care provider who violates this part, in accordance with certain procedures. The bill would include related legislative findings.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


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 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 and 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)“Employ” means to engage, suffer, or permit to work.

(b)“Employee” means any person employed by an employer, consistent with the definition of employee in the Order Regulating Wages, Hours, and Working Conditions in the Public Housekeeping Industry (8 C.C.R. Sec. 11050).

(c)“Health care provider” has the same meaning as set forth in paragraph (6) of subdivision (b) of Section 131021 of the Health and Safety Code, if that health care provider is owned or operated by a person or other entity with 100 or more employees in the state, and is not owned by the state, political subdivision of the state, or municipality, but does include a district hospital organized and governed pursuant to the Local Health Care District Law (Division 23 (commencing with Section 32000) of the Health and Safety Code).

(d)“Health care worker” has the same meaning as set forth in paragraph (4) of subdivision (b) of Section 131021 of the Health and Safety Code, but does not include health care workers performing exclusively managerial or supervisory functions. For purposes of this part, a health care worker is an employee of a health care provider.

1493.

(a)A health care provider shall pay hazard premium pay, also known as “hazard pay,” in the amount of five dollars ($5) per hour to each of its health care workers for each hour of work performed.

(b)The hazard pay 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.

(c)Hazard pay shall not be considered part of the health care worker’s regular rate of pay or compensation.

(d)It shall be a violation of this part for any health care provider to reduce any health care worker’s compensation or hours so as to prevent, in whole or in part, that worker from receiving hazard pay at a rate of five dollars ($5) per hour for each hour worked in addition to the worker’s other compensation.

1494.

(a)It is the intent of the Legislature that this part shall apply retroactively to require the payment of hazard premium pay beginning January 1, 2021.

(b)To the maximum extent permitted by law, a health care provider shall be required to pay back hazard premium pay, retroactively to January 1, 2021, to each health care worker it employs who is entitled to that payment and who has not received it.

1492.
 For purposes of this part, the following definitions apply:
(a) “Covered employer” means all 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, (2) is not owned by the state, a political subdivision of the state, or a municipality, but does include a district hospital organized and governed pursuant to the Local Health Care District Law (Division 23 (commencing with section 32000) of the Health and Safety Code), and (3) 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 paragraph (6) of subdivision (b) of Section 131021 the Health and Safety Code 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).

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 health care provider 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 health care provider covered employer or other person acting on behalf of the health care provider 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 premium 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.

1497.
 This part shall become inoperative when the state of emergency relating to the COVID-19 pandemic terminates pursuant to Section 8629 of the Government Code.

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.