Cal. LAB § 1491 — California Code / Code lab / Division 2 / Part 4.6 / Section 1491
Section 1491
Status: in_force

For purposes of this part, the following definitions apply:

(a) “Covered entity” means a person or entity that owns or operates a qualifying facility, including the Regents of the University of California.

(b) “Covered Services Employer” means a person or entity meeting both of the following:

(1) Directly employs or exercises control over the wages, hours, or working conditions.

(2) Provides onsite services such as clerical, dietary, environmental services, laundry, security, engineering, facilities management, administrative, or billing staff through a contract with a qualifying facility or provides nurse practitioners or physician assistants at a qualifying facility through a professional corporation where the professional corporation is the employer of record.

(c) “Date of record” means a date determined by the department that is no later than 45 days after end of the qualifying work period.

(d) “Department” means the State Department of Health Care Services.

(e) “Eligible full-time employee” means a person who meets both of the following:

(1) Is employed by a covered entity or covered services employer as of the date of record and is not a manager or supervisor.

(2) Was compensated for at least 400 in-person hours performed on the site of a qualifying facility during the qualifying work period for a single covered entity or covered services employer, or is considered to be a full-time employee on the site of a qualifying facility by the covered entity or covered services employer.

(f) “Eligible part-time employee” means a person who meets both of the following:

(1) Is employed by a covered entity or covered services employer as of the date of record and is not a supervisor or manager.

(2) Was compensated for at least 100 in-person hours, but less than 400 in-person hours, performed on the site of a qualifying facility during the qualifying work period for a single covered entity or covered services employer, or is considered to be a part-time employee by the covered entity or covered services employer, and is not considered to be an eligible full-time employee on the site of a qualifying facility by the covered entity or covered services employer.

(g) “Eligible physician” means a person who meets both of the following:

(1) Is a physician or surgeon, licensed by California state law.

(2) Primarily provides in-person patient care work in a clinical or medical department, or works as a member of the patient care team during the qualifying work period and on the date of record, at a qualifying facility or is an employee under Section 2401 of the Business and Professions Code of a covered entity or physician entity working primarily in-person on the site of a qualifying facility during the qualifying work period and on the date of record.

(h) “Managers and supervisors” means persons who meet all of the following:

(1) Whose duties and responsibilities involve the management of the enterprise in which they are employed or of a customarily recognized department or subdivision thereof.

(2) Who customarily and regularly directs the work of two or more other employees of the enterprise in which they are employed or of a customarily recognized department or subdivision thereof.

(3) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight.

(4) Who customarily and regularly exercises discretion and independent judgment.

(5) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and nonexempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: Sections 541.102, 541.104-111, and 541.115-116 of Title 29 of the Code of Federal Regulations. Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer’s realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement.

(6) Who must earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment is defined in subdivision (c) of Section 515 as 40 hours per week.

(i) “Matching retention payments” means monetary compensation other than salaries, wages, and overtime paid to an eligible full-time employee or eligible part-time employee that was paid on or after December 1, 2021, or will be paid on or before December, 31, 2022, and meets any of the following criteria:

(1) The compensation was or is paid as hazard or bonus pay as a result of the COVID-19 pandemic.

(2) The compensation was or is paid as a bonus based on performance or financial targets or a payout resulting from performance sharing programs designed to provide employees with a share in performance gains.

(3) The compensation was or is paid in response to operational needs of the covered entity or covered services employer, including, but not limited to, staffing shortages or recruitment needs.

(j) “Physician entity” means any legal entity that contracts with a qualifying facility to provide physician services, including, but not limited to, professional medical corporations and sole proprietorships.

(k) “Qualifying facility” means a health facility that is not a state facility and is licensed as one of the following:

(1) A general acute care hospital as defined in subdivision (a) of Section 1250 of the Health and Safety Code.

(2) An acute psychiatric hospital as defined in subdivision (b) of Section 1250 of the Health and Safety Code.

(3) A skilled nursing facility as defined in subdivision (c) of Section 1250 of the Health and Safety Code.

(4) A clinic organized under subdivision (l) of Section 1206 of the Health and Safety Code that is affiliated, owned, or controlled by a person or entity that owns or operates a facility described in paragraph (1).

(5) A clinic organized under subdivision (b), (d), or (r) of Section 1206 of the Health and Safety Code that is affiliated, owned, or controlled by a person or entity that owns or operates a facility described in Paragraph (1) or Parts 405 and 491 of Title 42 of the United States Code.

(6) A physician organization that is part of a fully integrated delivery system that includes a physician organization, health facility or health system, and a nonprofit health care service plan that provides medical services to enrollees in a specific geographic region of the state through an affiliate hospital system and an exclusive contract between the nonprofit health care service plan and a single physician organization in each geographic region to provide those medical services.

(7) A designated public hospital system that is comprised of a designated public hospital, as defined in subdivision (f) of Section 14184.10 of the Welfare and Institutions Code, and its affiliated governmental health and behavioral health provider entities, including nonhospital settings. A single designated public hospital system may include multiple designated public hospitals under common government ownership.

(l) “Qualifying work period” means a 91-day period identified by the department beginning no later than 30 days after the enactment of this section.

(m) “State facility” means a health facility that is owned or operated by this state or any state department, authority, bureau, commission, or officer, other than a health facility owned or operated by the Regents of the University of California. A health facility owned or operated by the Regents of the University of California is not be considered a state facility.