Over the past few months, California cities, including San Francisco, Los Angeles, San Jose, and Oakland have raced to implement emergency sick leave ordinances to provide paid leave to employees not covered by the federal Families First Coronavirus Act (FFCRA). Consequently, California employers have had to grapple with quickly changing laws that vary based on employees’ location within the state.
Below is an update regarding paid sick leave laws that affect San Francisco, Los Angeles, and Oakland employers.
SAN FRANCISCO’S AMENDED PUBLIC HEALTH EMERGENCY LEAVE ORDINANCE BECOMES LAW
The San Francisco Board of Supervisors passed the Public Health Emergency Leave Ordinance (“the Ordinance”) on April 7, 2020. The Ordinance applied to employers with more than 500 employees, who had been left out of the federal Families First Coronavirus Response Act (FFCRA). Mayor London Breed, however, never signed the Ordinance.
On April 14, 2020, the San Francisco Board of Supervisors passed an amended version of the Ordinance (the “Amended Ordinance”). The Amended Ordinance became effective upon Mayor Breed’s signature on April 17, 2020, and will remain in effect until June 17, 2020, unless reenacted or terminated prior to that date.
Covered Employees. The Amended Ordinance expands the definition of “employee.” Under the original Ordinance, employees who had performed 56+ hours of work within San Francisco in the preceding 365 days were covered by the Ordinance. In comparison, the Amended Ordinance applies to “any person providing labor or services for remuneration who is an employee under Labor Code Section 2750.3” (which creates a presumption that workers are employees). The Amended Ordinance also includes part-time and temporary employees, individuals who are considered “employees” under San Francisco’s Paid Sick Leave Ordinance, and persons employed through “Welfare-to-Work Programs.”
Calculating Available Leave. Rather than referring to the FFCRA, the Amended Ordinance specifies the amount of COVID-19 related sick pay employees are entitled to.
- Full-Time Employees: An employee who worked full-time as of February 25, 2020, is entitled to 80 hours of leave.
- Part-Time Employees: An employee who worked part-time as of February 25, 2020, is entitled to receive the number of hours equal to the average number of hours over a two-week period that the employee was scheduled to work over the previous 6 months ending on February 25, 2020 (including hours the employee took any leave).
Cap on Weekly Leave. The Amended Ordinance places a cap on the amount of leave available to an employee during a single week. Under the Amended Ordinance, an employee can only take leave equal to the average number of hours the employee was scheduled to work in a single week during the preceding six months (August 25, 2019 through February 25, 2020). The calculation should include any hours for which the employee took leave.
Narrowed Health Care Provider and Emergency Responders Exception. Initially, employers of health care providers and emergency responders could choose to exclude employees from the Ordinance. The Amended Ordinance limits employers’ ability to do so. Under the Amended Ordinance, employers of healthcare providers and emergency responders must provide such employees with paid leave if (1) the employee has been advised by a health care provider to self-quarantine; or (2) the employee is experiencing symptoms associated with COVID-19, is seeking a medical diagnosis, and does not meet the CDC guidance criteria to return to work for health care personnel with confirmed or suspected COVID-19.
To aid employers interpreting the Amended Ordinance, the Office of Labor Standards and Enforcement (“OLSE”) has drafted a number of FAQs. In addition, the OLSE has drafted a notice for employers to provide to employees, consistent with the Amended Ordinance’s notice requirements.
LOS ANGELES COUNTY EMPLOYEES IN UNINCORPORATED AREAS ENTITLED TO SICK PAY
On April 28, 2020, the Los Angeles County Board of Supervisors passed the Los Angeles County COVID-19 Worker Protection Ordinance (the “Ordinance”).
Effective Dates. While the Board of Supervisors passed the Ordinance on April 28, 2020, an employer’s obligations under the Ordnance to provide paid sick leave began on March 31, 2020. The Ordinance remains in effect until December 31, 2020, unless extended further.
Covered Employers. The Ordinance was specifically designed to apply to employers in the unincorporated areas of Los Angeles County that were not already covered by the FFCRA or Governor Newsom’s Executive Order No. N-51-20 , which applies to food sector workers . Accordingly, any employer doing business within an unincorporated area of Los Angeles County who employs more than 500 employees is covered by the Ordinance.
Covered Employees. Any employee employed as of March 31, 2020, is eligible to receive emergency paid sick leave under the Ordinance. An employer cannot require an employee to use other paid leave before using leave under the Ordinance.
Amount of Leave Employees are Entitled To. Full-time employees (employees who work at least 40 hours per week or are classified as full-time) are entitled to 80 hours of paid sick leave.
Part-time employees are entitled to paid sick leave in an amount no greater than their average two week pay over the period of January 1, 2020 through April 28, 2020.
Exemptions. Employers may choose to exclude employees who are emergency responders or health care providers. Under the Ordinance, emergency responders include, but are not limited to, peace officers, firefighters, paramedics, emergency medical technicians, public safety dispatchers or safety telecommunicators, emergency response communication employees, and rescue service personnel.
Health care providers include, but are not limited to, medical professionals, “employees who are needed to keep hospitals and similar health care services well supplied and operational,” and employees who are involved in research, development and production of equipment, drugs, and vaccines.
In addition, employees’ whose employment is governed by a collective bargaining agreement (“CBA”) are potentially exempt. Parties of a CBA may waive any or all of the Ordinance’s requirements.
Cap on Sick Leave Paid. The amount an employer must pay to an employee is capped at $511 per day, or $5,110 in the aggregate.
Qualifying Reasons for Paid Leave. Upon a written request, an employer should provide paid leave under the Ordinance if an employee cannot work, or telework, because:
- A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system);
- The employee needs to care for a family member who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
- The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider ceases operations in response to a public health or other public official’s recommendation.
Employers may require documentation from an employee confirming their need for leave if it is consistent with the FFCRA and the Department of Labor’s Rules and Regulations. However, an employee may begin to use paid leave before obtaining requested documentation.
Available Offset. If an employer has provided an employee with paid leave above the employee’s regular or previously accrued leaves for COVID-19 related reasons, the obligation to provide additional leave under the Ordinance is reduced for every hour the employer allowed the employee to take voluntary COVID-19 leave. To qualify for an offset, the voluntary COVID-19 leave must have been provided to an employee on or after March 31, 2020.
OAKLAND WORKERS ENTITLED TO EMERGENCY PAID SICK LEAVE
On May 12, 2020, the Oakland passed the Protecting Workers and Communities During a Pandemic – COVID-19 Emergency Paid Sick Leave Ordinance (the “Ordinance”).
Effective Dates. The Ordinance went into effect on May 12, 2020 and will remain in effect until December 31, 2020, unless extended.
Covered Employers. All employers who employ 50 or more employees are covered by the Ordinance.
Covered Employees. An “employee,” as defined by Labor Code section 2570.3 , who has worked two or more hours after February 3, 2020, qualifies for paid sick leave under the Ordinance. In addition, recipients of public benefits who as a condition of receiving public assistance have performed at least two hours of work within the geographic boundaries of Oakland after February 3, 2020 are also entitled to paid sick leave.
Amount of Leave Employees are Entitled To. Full-time employees who (1) worked at least 40 hours per week in Oakland over the period of February 3, 2020 through March 4, 2020 (or at any point thereafter); or (2) are classified as full-time by their employer are entitled to 80 hours of paid sick leave.
Part-time employees are entitled to the average number of hours the employee worked within Oakland over 14 days during the period of February 3, 2020 through March 40, 2020. The average hours calculation must be based on the 14 days in which the employee worked the highest number of hours.
An employee cannot be required to exhaust other paid leave provided by the employer before utilizing leave available under the Ordinance. Additionally, employers cannot require employees to use leave in more than one-hour increments and must allow employees to use leave intermittently.
Exemptions and Related Requirements:
- Health Care Workers and Emergency Workers. Employers who employ health care providers or emergency responders, as defined by 29 CFR 826.30 (c), may elect to exempt health care providers and emergency responders from the requirements of the Ordinance. Employers who choose to employ this exemption must retain documentation describing the employee classifications that are exempted, from which locations, and from which provisions of the Ordinance for a period of three years. In addition, an employer must also document which employee classifications are not exempt, and ensure that non-exempt employees receive proper notice of the Ordinance.
- Existing 160+ Hour Leave Policies. Employers whose paid leave policies provide employees with (1) the ability to accrue at least 160 hours of paid leave; and (2) provides employees with immediate access to at least 80 hours of paid leave are exempt from the Ordinance. If an employee’s accrued paid leave balance has fallen below 80 hours, an employer must provide additional leave to bring the balance to 80 hours.
Cap on Sick Leave Paid. The amount an employer must pay to an employee for paid sick leave under the Ordinance is capped at $511 per day, or $5,110 in the aggregate.
If an employee takes sick leave under the Ordinance, the employer should provide payment no later than the payday for the next regular payroll period, and in no event, more than 14 days after the leave is taken.
Qualifying Reasons for Paid Leave. An employer must provide an employee with paid leave if an employee is unable to work, or telework, for the below reasons. An employee is only required to provide notice of leave “as soon as practicable.”
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- The employee is caring for an individual who is (1) subject to a federal, state, or local quarantine or isolation order related to COVID-19; or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is caring for a son or daughter of such Employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
- The employee is experiencing any other substantially similar condition specified by the federal Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury;
- To enable the Employee is to care for a Family Member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
- To take time off work because the employee (1) is at least 65 years old; (2) has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; (3) has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or (4) has any condition certified by a healthcare professional as putting the Employee at a heightened risk of serious illness or death if exposed to COVID-19.
An employer cannot require an employee to provide a doctor’s note or the other documentation confirming their need for leave unless the employee is requesting leave because they have condition that is certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19. In such cases, the employee need not disclose their condition, only that they are at a heightened risk if exposed to COVID-19.
Offset Available. If an employer has provided paid sick leave to an employee under the FFCRA, the employer may reduce their obligation under the Ordinance by the number of hours provided to the employee under the FFCRA.
Employers Required to Pay Out Paid Sick Leave Prior to Layoffs. Unlike any other COVID-19 related sick leave ordinance, the Oakland Ordinance requires employers to pay out accrued sick leave upon termination of the employment relationship. Accordingly, if an employer lays off an employee, the employer must pay an employee for all sick leave accrued under Oakland Municipal Code section 5.92.030 immediately upon separation.
Employers Required to Provide Notice to Employees. Within three days of the City of Oakland publishing a mandatory notice, employers must provide the notice in a manner calculated to reach all employees, including conspicuous posting in the workplace or on the employer’s web-based or app-based platform, and/or via email. Notice must be given in all languages spoken by more than 10% of employees.
Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Michelle Freeman in Hirschfeld Kraemer’s San Francisco office, email@example.com, (415) 835-9003.
For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS