San Jose and San Francisco are two of the latest California cities to adopt supplemental paid sick leave measures in response to COVID-19, joining Los Angeles, Emeryville and (it is expected) Oakland. Both ordinances fill gaps in the federal Families First Coronavirus Response Act (FFCRA), by, among other things, providing sick leave benefits to individuals who are excluded from coverage under the FFRCA.

San Jose

Effective period: The ordinance is effective from April 7, 2020, through December 31, 2020.

Covered employers: Unlike the FFCRA, which applies to employers with fewer than 500 employees and exempts employers with fewer than 50 employees from providing leave under certain circumstances, San Jose’s measure applies to employers with 500 or more employees and those with fewer than 50 employees.

Covered employees: The ordinance covers employees who have worked at least two hours within the city’s geographic boundaries, and who leave their residence to perform essential work for an essential business. Employees who can work from home are not eligible for leave under the ordinance.

Amount of supplemental paid sick leave: Under the ordinance, full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled to sick leave hours equal to the average number of hours they work over a two-week period.

Covered reasons for supplemental paid sick leave: Employees can use paid sick leave to take time off for any of the following reasons:

  • The employee is subject to quarantine or isolation by a federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19.
  • The employee is advised by a health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider.
  • The employee experiences symptoms of COVID-19 and is seeking medical diagnosis.
  • The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Notably, unlike the Los Angeles and San Francisco ordinances, age or underlying health conditions do not form additional covered bases for leave.

Pay during leave: Both part- and full-time employees who use sick leave for themselves will receive their regular rate of pay with a cap of $511 per day and $5,110. By contrast, if employees use such leave to care for another person, they will receive two-thirds of their regular rate of pay, with a cap of $200 per day and $2,000 total.

Employer exemption, carryover and payout of sick leave: Employers that pay personal leave that is at least equivalent to that required under the ordinance are exempt from the ordinance’s requirements. Also, employees are not entitled to carry over sick leave between years and are not entitled to be paid for any unused sick leave.

Notice requirements: The ordinance does not impose any specific notice requirements, but it authorizes the city’s Office of Equality Assurance to establish reasonable notice requirements, suggesting such requirements may be forthcoming.

San Francisco

Effective period: The San Francisco Public Health Emergency Leave Ordinance (SF PHELO) went into effect on April 17, 2020, and will remain in effect until June 17, 2020, unless reenacted, or until the public health emergency is terminated, whichever is earlier.

Covered employers: SF PHELO would apply to employers with 500 or more employees worldwide. Notably, unlike San Jose’s sick leave ordinance, SF PHELO would not apply to employers with fewer than 50 employees.

Covered individuals: SF PHELO applies to all “employees” as defined under Cal. Lab. Code Section 2750.3(a) (which codifies the strict “ABC” test under Dynamex, as provided in our alert here) who perform work within the city’s geographic boundaries. Given this vast definition, presumably, SH PHELO applies not only to employees, but also misclassified independent contractors who provide services within the city. In addition, SH PHELO would apply to part-time and temporary employees, and certain employees who are part of job training programs such as CalWorks or CAAP.

Amount of supplemental paid sick leave: Full-time eligible employees may use up to 80 hours of emergency leave. For part-time employees, employers should provide the number of hours equal to the average number of hours worked over a two-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including any hours for leave of any type. Leave is available to employees on the effective date of the ordinance, April 17, 2020, regardless of how long the employee has been employed.

Covered reasons for supplemental paid sick leave:

  • The employee is subject to a quarantine or isolation order related to COVID-19. This includes statewide and local shelter-in-place orders, and also includes employees who are members of a “vulnerable population” (i.e. those who are 60 years and older; people with certain health conditions; and people who are pregnant or were pregnant in the last two weeks).
  • The employee has been advised by a healthcare provider to self-quarantine.
  • The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.
  • The employee is caring for a family member who is subject to an order as described above, has been advised to self-quarantine or is experiencing symptoms associated with COVID-19.
  • The employee is caring for a family member if the school or place of care of the family member has been closed, or the care provider of such family member is unavailable due to COVID-19.
  • The employee is experiencing any other substantially similar condition specified by the local health officer.

Healthcare providers: Employers of employees who are healthcare providers or emergency responders may limit use of emergency leave; however, they must allow such employees to, at a minimum, use SF PHELO leave if they are unable to work (either at their customary place of work or telework) because either (1) the employee has been advised by a healthcare provider to self-quarantine; or (2) the employee is experiencing COVID-19 symptoms, seeking a medical diagnosis and does not meet the CDC guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.

Carryover and payout of sick leave: The ordinance is silent on whether such leave can be carried over to the following year. In any event, employers are not obligated to pay out any unused sick leave upon an employee’s termination.

Notice requirements: The Office of Labor Standards Enforcement on April 18, 2020, posted to its website a notice, and employers have three days from the date of the posting to provide the notice to employees by posting in a conspicuous place at the workplace.

Interaction with other paid sick leave obligations: SF PHELO runs concurrently with emergency paid sick leave under the FFCRA. SF PHELO is in addition to California/San Francisco-mandated paid sick leave (which can provide up to 72 hours of paid sick leave per year, depending on the employer’s size).

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