Update May 26: This blog has been updated to reflect current guidance about Bay Area emergency paid sick leave.
In response to COVID-19, California cities have begun to implement emergency paid sick leave ordinances to support local workers. These local ordinances add another layer of complexity for businesses navigating the rapidly changing rules related to COVID-19. Details of the San Francisco, San Jose, and Oakland emergency sick leave ordinances are below.
Our blog on Mayor Garcetti's emergency order expanding that paid sick leave on April 7, 2020 can be found here.
On April 17, 2020, San Francisco implemented an emergency ordinance requiring businesses with 500 or more employees to provide an additional two weeks of paid sick leave for employees to use during the COVID-19 public health emergency. The ordinance applies to businesses too large to be subject to the federal Families First Coronavirus Response Act (FFCRA), requiring these larger employers to provide the same sort of emergency sick leave (but not family care leave) that smaller employers are obligated to provide. Our prior blog on the FFCRA can be found here.
When Is ESL Available and to Whom?
The emergency sick leave (ESL) is available immediately and will expire on June 17, 2020, or when the public health emergency ends, whichever is sooner. The ESL is available to full-time, part-time, temporary, and seasonal employees who performed work in the City, regardless of their hire date or employment status. Employees who worked from a San Francisco location prior to February 25 are entitled to this leave even if they now telework from a location outside of the city. Employees who worked outside of San Francisco prior to February 25, but subsequently switched to telework in San Francisco, are not eligible for this leave.
Employees who were full-time as of February 25, 2020, are entitled to 80 hours of ESL. Employees who were part-time as of that date are entitled to the number of hours normally worked in a two-week period, based on the average number of hours worked during the prior six months.
To the extent feasible, the amount of ESL available to an employee should be listed on that employee's paystub. If that is not feasible, a separate writing must be given to each employee each pay period providing this information.
ESL is available for immediate use and may be taken “regardless of whether and when the Employee is scheduled to work,” meaning that employees can use the emergency leave even if they are not scheduled. Hours of work and hours of leave in a week may not exceed the average number of the employee's scheduled weekly hours. ESL must be in addition to the employer’s existing paid leave policies. However, covered employers' obligations under this ordinance are reduced for every hour an employee was allowed to take paid leave consistent with the ordinance on or after February 25, including in compliance with the California Supplemental Paid Sick Leave Executive Order.
Employees may elect to use ESL before using other accrued paid time off. Although employees on furlough are allowed to use the leave, employers are not required to provide ESL after an employee has been separated from employment.
For What Reasons Can ESL Be Used?
ESL can be used if the employee is unable to work because the employee:
- Is subject to a quarantine or isolation order (including the existing shelter-in-place orders and their heightened restrictions on vulnerable populations);
- Has been advised to self-quarantine by a healthcare provider;
- Has COVID-19 symptoms and is seeking a diagnosis;
- Is caring for a family member who is subject to a quarantine or isolation order, is self-quarantining, or has COVID-19 symptoms;
- Is caring for a family member whose school, place of care, or care provider is unavailable due to the public health emergency; or
- Is experiencing a substantially similar condition.
Employers cannot require that ESL be in increments of more than one hour, cannot require a doctor’s note, cannot reduce their paid time off policies on or after the effective date of the ordinance, and cannot require that employees find replacement workers to cover their leave.
What Are the Limitations on ESL?
Employers can require that employees provide reasonable notice when need for ESL is foreseeable. ESL can be waived through express language in a collective bargaining agreement.
Employers of healthcare providers and emergency responders can limit those employees’ use of ESL for certain purposes, but it must be allowed when the employee:
- Has been advised by a healthcare provider to self-quarantine, or
- Has COVID-19 symptoms, is seeking a diagnosis, and does not meet CDC guidance to return to work.
That Is the Notice Obligation?
Employers must immediately post or publish a notice, available here, in a manner calculated to reach all employees. The notice is available in English, Spanish, and Chinese, and must be translated into any language spoken by at least five percent of employees at the worksite.
On April 7, 2020, the San Jose City Council passed its version of an emergency sick leave ordinance in response to the COVID-19 pandemic. The text of the ordinance is available here. Clarification from the San Jose Office of Equality Assurance (OEA) is available here.
The San Jose ordinance is effective from April 7, 2020, through December 31, 2020. Notably, while the San Francisco ordinance applies to business with 500 or more employees, the San Jose ordinance applies to all businesses “that are not required – in whole or in part – to provide paid sick leave benefits under the federal Emergency Paid Sick Leave Act” in the FFCRA. This means that the San Jose ordinance applies not only to employers with 500 or more employees, but also to employers with fewer than 50 employees and employers of healthcare providers or emergency responders who are excluded from, or can opt out of, the FFCRA. Employers that operate a hospital were given an additional two weeks—that is until April 21, 2020—to comply.
The San Jose emergency leave is available to employees who leave their residence to perform essential work and have worked at least two hours in the City of San Jose. Full-time employees are entitled to 80 hours of emergency leave. Part-time employees are entitled to the number of hours normally worked in a two-week period, based on the average of hours worked during the prior six months.
Unlike San Francisco, the San Jose Ordinance is not strictly "supplemental." Employers that had provided employees on the date of enactment with some combination of paid personal time off (vacation, sick leave, PTO) "at least equivalent" to the provisions of the ordinance are exempt from the ordinance. However, for any employee who had less than the required amount available to be used on that date, the employer was immediately obligated to add time "to the extent of such deficiency."
The emergency sick leave is available if the employee:
- Is subject to quarantine or isolation due to a federal, state, or local COVID-19 order;
- Is quarantined or isolated due to COVID-19;
- Is caring for someone quarantined or isolated due to COVID-19;
- Is advised by a healthcare provider to self-quarantine;
- Experiences COVID-19 symptoms and is seeking a medical diagnosis; or
- Is caring for a minor child because a school or daycare is closed due to COVID-19.
When using emergency leave, employees are entitled to their regular rate of pay, up to $511 a day and not to exceed $5,110. However, if the employee is caring for another person, the employee is only entitled to two-thirds of his or her regular rate of pay, up to $200 a day and not to exceed $2,000.
Employees cannot be required to find a replacement as a condition of using the emergency leave. Unused emergency leave is not paid out on termination.
On May 12, 2020, the Oakland City Council passed the Protecting Workers and Communities During a Pandemic – COVID-19 Emergency Paid Sick Leave Ordinance, requiring employers with 50 or more employees to provide emergency paid sick leave (EPSL) to employees as a response to the COVID-19 pandemic. The text of the ordinance is available here.
When Is the Leave Available and to Whom?
The emergency paid sick leave (EPSL) ordinance is effective immediately and will expire on December 31, 2020. EPSL is available to any employee, regardless of immigration status, who has performed work for remuneration within the City of Oakland, including at the Port of Oakland, for at least two hours after February 3, 2020. The ordinance also applies to recipients of public assistance who perform work as a condition of that assistance.
Employees are entitled to 80 hours of EPSL if they: 1) are classified as full time by the employer, or 2) have worked an average of at least 40 hours per week within the City from February 3 through March 4, 2020, or any point thereafter. Employees who worked fewer than 40 hours per week from February 3 through March 4, 2020 and who continue to do so after March 4 are entitled to EPSL hours equal to the employee’s number of hours worked in the City of Oakland in a 14-day period from February 3 through March 4, 2020.
EPSL is paid at the employee’s normal hourly rate and with the same benefits. Employers cannot reduce or eliminate contributions to employee health benefits. EPSL payments shall not exceed $511 per day or $5,110 in the aggregate. Employers who have provided paid sick leave hours under the Federal Emergency Sick Leave Act (passed as part of FFCRA) can credit that time against their EPSL obligations.
Employers are not required to provide leave under this ordinance if, after February 3, 2020, they provide to employees the ability to accrue at least 160 hours of paid personal leave (PTO, sick leave, or vacation time) per year, provided that each such employee had immediate access on May 12, 2020, to at least 80 hours of leave available for the covered purposes.
Additionally, employers are not required to provide leave under this ordinance if, after February 3, 2020, they provided immediate access to paid personal leave (PTO, sick leave, or vacation time), for reasons related to COVID-19 in amounts at least equivalent to the ordinance, i.e., 80 hours for full-time employees. This leave must have been in addition to any leave required by a CBA, employment contract, or public policy.
The ordinance does not apply to:
- Employers with fewer than 50 employees between February 3 and March 4, 2020. However, unregistered janitorial employers and certain franchisees are subject to the ordinance regardless of their size.
- Employers of healthcare providers or emergency responders, as defined in the Federal Emergency Paid Sick Leave Act (passed as part of FFCRA), who elect exemption from the ordinance, provided that they comply with the federal regulations and retain information regarding the details of the exemption for three years, including classifications and locations exempted.
- Employers with clear and unambiguous collective bargaining agreement language waiving obligations under the ordinance.
- Federal, state, or other governmental entities.
For What Reasons Can the Leave Be Used?
Employees are entitled to use EPSL if they are unable to work on site or to telework because:
- i. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- ii. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
- iii. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- iv. The employee is caring for an individual who is subject to a quarantine order or has been advised as described in Section 5.94.030(B)(a)(ii);
- v. The employee is caring for a son or daughter 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;
- vi. 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;
- vii. The employee is caring for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19;
- viii. The employee chooses to take time off because the employee:
- is at least 65 years old;
- has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- 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
- 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.
What Is the Relationship With Other Paid Time off?
Employees may use EPSL before any other leaves, including paid sick leave, and may use the leave intermittently in one-hour increments.
The EPSL ordinance also modifies Oakland’s non-emergency Paid Sick Leave ordinance. As a result of that modification, an employee who has been laid off or furloughed must immediately be compensated for their accrued but unused non-emergency Paid Sick Leave.
What Are the Employer's Rights?
If foreseeable, employees should provide notice to the employer as soon as practicable. Employers cannot require employees to find a replacement before using the EPSL.
Employers may take "reasonable measures" to verify use of EPSL, not to exceed a $5 expense to employees. Employers may only require a doctor's note or documentation if the employee claims to have "condition certified by a healthcare professional as putting the Employee at a heightened risk of serious illness or death if exposed to COVID-19." Employers cannot prevent use of EPSL in order to obtain documentation necessary to satisfy reporting or reimbursement requirements of the Federal Emergency Paid Sick Leave law.
What Are the Notice Requirements?
The City will publish a notice informing employees of the ordinance. Employers are required to provide the notice to employees, within three days of publication, in a manner calculated to reach all employees (including physical posting, electronic communication, or conspicuous electronic posting). The notice must be provided in all languages spoken by more than 10 percent of employees.
Employer COVID-19 Resources
Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic, and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.