In California, several cities have taken measures to mandate private employers that are not covered under the FFCRA to provide paid sick leave for COVID-19 related circumstances. 

Several cities in California have swiftly enacted emergency ordinances requiring private employers to provide public health emergency leave consistent with the federal Families First Coronavirus Response Act (FFCRA). The ordinances follow state and local proclamations of a public emergency and the increasingly robust shelter-in-place orders affecting businesses and individuals in response to the spread of the novel coronavirus COVID-19. We analyzed the San Francisco Public Health Emergency Leave ordinance and the FFCRA in recent Alerts. This Alert identifies developments in other California cities like San Jose, Los Angeles and Emeryville, as well as permissible uses of paid sick leave under the existing laws in Oakland, San Diego and Santa Monica for work absences that are related to COVID-19.

San Jose

On April 7, 2020, the San Jose City Council approved the COVID-19 Paid Sick Leave Ordinance. Unlike the San Francisco ordinance, which is limited to employers with more than 500 employees nationwide, the San Jose ordinance covers large employers as well as small employers with less than 50 employees that qualify for the FFCRA’s small business exemption.

Under the San Jose ordinance, paid emergency leave is limited to only essential workers[1] who must leave their home in order to perform their work and who have worked at least two hours for their employer within the geographical boundaries of the city of San Jose. Essential workers that are able to telework are not covered. In addition, exceptions apply to certain collectively bargained workers in the construction industry.

Paid sick leave will be available for immediate use in the same amounts and for the same circumstances as under the FFCRA. Full-time employees are entitled to 80 hours of sick leave, and part-time employees are entitled to the average number of hours they work over a two-week period. The amount of paid sick leave for part-time employees is calculated based on average number of hours worked in the six-month period immediately preceding the effective date of the San Jose ordinance, or if the employee has worked for less than six months, over the duration of their employment. Payment is based on the compensation usually earned and, depending on the reason the leave is taken, up to the statutory caps.

Employers must comply with the San Jose ordinance to the extent of any deficiency between their existing paid personal leave benefits and the paid sick leave required by the ordinance. Accordingly, employers that provide some combination of paid personal leave that is at least equivalent to the paid sick time required by the San Jose ordinance are exempt and do not have to provide additional leave.

Employers may not require an employee to find a replacement as a condition of using sick leave. Since the San Jose ordinance is a temporary measure in response to COVID-19 and expires on December 31, 2020, employees cannot carry over unused leave and are not entitled to be paid for unused sick leave at termination.

Finally, the city’s Office of Equality Assurance is authorized to establish reasonable requirements for informing employees of their emergency paid leave rights, requiring employers to post notices and enforcing the San Jose ordinance.

Los Angeles

On April 7, 2020, Mayor Eric Garcetti signed the COVID-19 Supplemental Paid Sick Leave Ordinance, which was passed by the Los Angeles City Council on March 27, 2020. The Los Angeles ordinance is applicable to private employers that have 500 or more employees within the city of Los Angeles or 2,000 or more employees nationwide, subject to the following exemptions: (1) employers of emergency personnel or healthcare workers;[2] (2) global parcel delivery companies; (3) employers offering generous paid leave or paid time off that provide a minimum of 160 hours of paid leave annually;[3] (4) certain new businesses that began operating in the city of Los Angeles between September 4, 2019, through March 4, 2020; and (5) any business or organization that was closed or is not operating pursuant to a public health emergency order related to COVID-19.

Employees who have performed any work within the geographical boundaries of the city of Los Angeles, have been employed with the same employer from February 3, 2020, through March 4, 2020, and cannot work or telework due to circumstances related to COVID-19 are eligible for paid supplemental leave. Certain collectively bargained employees may be exempt from supplemental paid sick leave.

Employers must provide supplemental paid sick leave upon the oral or written request of an employee for the following reasons: (1) a COVID-19 infection, or because a healthcare provider requires or recommends the employee isolate or self-quarantine; (2) the employee is 65 or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease or weakened immune system; (3) to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or (4) to provide care for a family member whose senior care provider or school or child care provider (children under 18) closes in response to public health or other public official’s recommendation, if a reasonable alternative caregiver is not available. Employers cannot require a doctor’s note or other documentation for the use of supplemental paid sick leave.

The Los Angeles ordinance provides that full-time employees are entitled to 80 hours of leave, and part-time employees are entitled to leave based on the employee's average two-week pay over the period of February 3, 2020, through March 4, 2020, up to the statutory caps. Employers may offset supplemental paid sick leave by other forms of paid leave provided to an employee due to a COVID-related condition or in response to an inability to work due to COVID-19, on or after March 4, 2020. Employees in the city of Los Angeles are also entitled to mandated paid sick under the existing Los Angeles Paid Sick Leave law.

Like other sick leave laws, the Los Angeles ordinance strictly prohibits retaliatory conduct in relation to an employee’s request or use of supplemental paid sick leave. Employees claiming a violation of this Los Angeles ordinance are entitled to bring a court action against their employer and may be entitled to reinstatement (if their employment is terminated), back pay and supplemental paid sick leave unlawfully withheld, calculated at their average rate of pay, other legal or equitable relief the court may deem appropriate, as well as reasonable attorneys' fees and costs. The Los Angeles Office of Wage Standards is authorized to promulgate regulations and enforce the Los Angeles ordinance.

The Los Angeles ordinance will expire two calendar weeks after the expiration of the COVID-19 local emergency period.

Emeryville

On April 2, 2020, the city of Emeryville issued a memorandum expanding Emeryville’s existing Paid Sick Leave Ordinance to cover circumstances related to COVID-19. Accrued sick leave can be used if an employee needs time off of work in the following situations: (1) public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease; (2) the employee falls within the definition of a “vulnerable population”; (3) the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation; (4) to provide care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or (5) to provide care for a family member whose school, childcare provider, senior care provider or work temporarily ceases operations in response to a public health or other public official’s recommendation. Employers in Emeryville should be cognizant of the additional reasons that an employee can use paid sick leave during the COVID-19 public health emergency.

Oakland

Under Oakland’s existing Paid Sick Leave Ordinance, employers are required to provide paid sick leave to their employees so they may stay home when they are sick or need to go to the doctor, or to care for others who may be sick or need care. Employees can also use paid sick leave to take care of family members or a designated person who is sick. In response to COVID-19, the city of Oakland has issued guidance to employers explaining the requirements under the existing law. While no emergency supplemental paid leave ordinance has been enacted, it appears that legislation is being developed.

San Diego

San Diego’s existing Earned Sick Leave Ordinance allows employees to use paid sick leave when they are sick or need to go to the doctor, or to care for family members who may be sick. In addition, under the existing San Diego ordinance, leave can be used if an employee cannot work because their place of business is closed by order of a public official due to a public health emergency, or the employee is providing care or assistance to a child whose school or child care provider is closed by order of a public official due to a public health emergency. Accordingly, employees may be entitled to use sick leave under the existing law for situations where an employee cannot work due to a COVID-19, such as in the event of a school closure or caregiver unavailability.

Santa Monica

Santa Monica’s existing Paid Sick Leave Ordinance allows employees to use paid sick leave for the diagnosis, care or treatment of an existing health condition or preventive care for an employee or an employee’s family member. On March 12, 2020, the city of Santa Monica issued guidance reminding employers to comply with Santa Monica’s existing ordinance during the COVID-19 public health emergency.

What This Means for Employers

In California, several cities have taken measures to mandate private employers that are not covered under the FFCRA to provide paid sick leave for COVID-19 related circumstances. Employers should expect an influx of paid sick leave and expanded family leave requests from employees based on the local ordinances. Employers should carefully review existing paid sick laws, the local supplemental paid sick leave ordinances, as well as the FFCRA and the Department of Labor’s newly issued regulations and ensure that policies are in place for compliance. Management and human resources personnel should be trained on the new leave requirements. Employers are encouraged to review the requirements with an employment attorney and to stay tuned for further developments in all of the localities where they have operations.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For Further Information

If you have any questions about this Alert, please contact Eve I. Klein, Linda B. Hollinshead, James S. Brown, Anjuli M. Cargain, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Notes

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.