Some California cities have enacted local ordinances requiring businesses with 500 employees or more to provide COVID-19 related emergency paid sick leave. These ordinances “fill the gap” in paid sick leave benefits under the federal Families First Coronavirus Response Act (FFCRA), which requires employers with fewer than 500 employees to provide Emergency Paid Sick Leave and Expanded FMLA Leave to employees who miss work for certain COVID-19 related reasons beginning April 1, 2020.
This alert sets out the highlights of the new or pending emergency paid sick leave ordinances in the California cities of San Francisco, Los Angeles and San Jose. While they mirror the FFCRA Emergency Paid Sick Leave requirements in many respects, there are some differences, and employers covered by these ordinances should carefully review the requirements.
On April 14, the San Francisco Board of Supervisors (BOS) voted to approve the Public Health Emergency Leave Ordinance, (SFPHELO). The BOS previously approved a version on April 7, but this one contains some changes. The SFPHELO will now go to the Mayor for signature. If signed, the SFPHELO will go into effect immediately and will expire after 61 days unless renewed.
The SFPHELO requires employers, except those covered by the FFCRA, to provide paid sick leave (SFPHELO Leave) to employees who work in the City. It includes employees who work limited hours in the City, as long as they would qualify for paid sick leave under SF’s Paid Sick Leave Ordinance (56 hours of work in SF in the last year). An “employee” includes those who are employees under California’s new independent contractor law- AB5 or Cal. Labor Code 2750.3.
SFPHELO Leave may be used for specified COVID-19 related reasons. Employers may limit a healthcare provider or emergency responder’s use of SFPHELO Leave except where the employee has been advised by a healthcare provider to self-quarantine or is experiencing COVID-19 symptoms and seeking a diagnosis.
Employees who were full time as of February 25, 2020, are entitled to 80 hours of SFPHELO Leave. Part-time employees are entitled to the average number of hours in a two-week period during the 6 months prior to February 25, 2020 (including leave).
SFPHELO Leave is in addition to other paid leaves; however, an offset is allowed for paid leave – other than previously accrued leave – given after February 25, 2020, for specified COVID-19 reasons.
SFPHELO Leave may be taken regardless of whether and when the employee is scheduled to work; however, the total number of hours of leave taken in a week may not exceed the average number of hours scheduled per week over the previous six months ending on February 25, 2020 (including leave).
The SFPHELO requirements may be waived in a bonafide collective bargaining agreement if the waiver is express, clear, and unambiguous.
The City of Los Angeles enacted an ordinance requiring employers of 500 or more employees in the City of Los Angeles, or 2,000 or more employees nationwide, to provide paid sick leave to an employee who has been employed with the employer from February 3 through March 4, 2020, and takes time off work for certain COVID-19 related reasons.
Full-time employees get 80 hours of paid sick leave. Employees who work fewer than 40 hours per week are entitled to the average hours in a two-week period between February 3 and March 4, 2020. Paid sick leave per employee cannot exceed $511 per day and $5,110 in the aggregate.
An offset is allowed for employers who gave paid leave for certain COVID-19 reasons– other than previously accrued leave – after March 4. The ordinance will expire two weeks after the end of the COVID-19 local emergency period.
There are several exemptions to the ordinance, including exemptions for health care workers and emergency responders, critical parcel delivery employees, businesses that are “new” (started or relocated to the city between September 4, 2019, and March 4, 2020), employers who already provide “generous” paid leave, government agencies, and certain closed businesses. There is a provision for waiver through collective bargaining; however, the collective bargaining agreement must expressly address COVID-19 sick leave.
San Jose’s City Council approved an urgency ordinance which applies to employers who are covered by the city’s Minimum Wage Ordinance, but NOT covered by the FFCRA. These employers must provide paid sick leave to “employees” who leave their residences to perform Essential Work (as defined in the county public health order) and take time off work due to certain COVID-19 related reasons. An “employee” is someone who has worked at least two hours in San Jose for the employer and is an “employee” under California’s AB5 (Cal. Labor Code sec. 2750.3), or, in the construction industry, under Cal. Labor Code sec. 245.5.
Full-time employees get 80 hours of paid sick leave. Part-time employees get the average hours worked over a two week period. Paid sick leave is at the employee’s regular rate of pay up to $511 per day or $5,110 in the aggregate, except that for leave taken to care for another person is paid at 2/3 the regular rate up to $200 per day and an aggregate of $2,000. For a part-time employee, the employer must calculate the amount of paid sick leave used based on the average number of hours the employee worked per day during the 6 months preceding the effective date of the ordinance.
The ordinance does not apply to employees who can work from home. It also contains an exemption for employers who provided – as of the effective date of the ordinance – paid leave at least equal to that required under the ordinance. Employers who operate hospitals have two weeks from the effective date to provide the paid leave to qualify for this exemption.
Keeping up with COVID-19 related employment rights and obligations requires constant attention to federal, state and local developments. Employers are encouraged to reach out to their RJO attorney and/or any RJO labor and employment attorney to discuss any questions or concerns related to these new regulations or other COVID-19 related issues. We are here to help.