CALIFORNIA STATE AND LOCAL COVID-19 RELATED EMERGENCY PAID SICK LEAVE LAWS APPLY TO SOME EMPLOYERS WITH 500+ EMPLOYEES

April 20, 2020



The recently enacted federal Families First Coronavirus Response Act (FFCRA) provides emergency paid sick leave to employees, but excludes from coverage employers with 500 or more employees.  Executive Orders and ordinances are going into effect both statewide and locally to help make up for this gap in coverage and mandate that employers with 500 or more employees provide up to 80 hours of emergency paid sick leave for reasons relating to COVID-19.

As of April 17, 2020, orders and ordinances have gone into effect in Los Angeles, San Jose, San Francisco and statewide in California.

See below for detailed information on orders and ordinances in the State of California, San Francisco, San Jose and Los Angeles.

CALIFORNIA – Executive Order COVID-19 Supplemental Paid Sick Leave for Food Sector Workers

On April 16, 2020, Governor Newsom signed Executive Order N-51-20 requiring covered employers throughout California to provide COVID-19 related supplemental paid sick leave to covered Food Sector Workers (FSW).

Effective—From April 16, 2020 through the pendency of any statewide stay-at-home orders issued by the State Public Health Officer, except that a covered employee taking supplemental sick leave at the time of the expiration of such orders shall be permitted to take the full amount of supplemental leave that employee would otherwise be entitled to under the order.

Covered Employee—FSW who:

  • Are exempt from any statewide stay-at-home order;
  • Leave their residence to perform work for or through a covered employer; and
  • Satisfy any of the following criteria:
    • Works in one of the following industries/occupations:
      • Canning, freezing, and preserving industry under Industrial Welfare Commission (“IWC”) Wage Order 3-2001 § 2(B);
      • Industries handling products after harvest under IWC Wage Order 8-2001 § 2(H);
      • Industries preparing agricultural products for market, on the farm under IWC Wage Order 13-2001 § 2(H); or
      • An agricultural occupation under IWC Wage Order 14-2001 § 2(D);
    • Works for a covered employer that operates a food facility as defined in Health and Safety Code section 113789(a)-(b); or
    • Delivers food from a food facility as defined in Health and Safety Code section 113789(a)-(b)

Covered Employer—Private entity with 500 or more employees nationally.

Permitted Uses— To the extent any covered FSW is unable to work due to any of the following:

  • The FSW is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • The FSW is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • The FSW is prohibited from working by the covered employer due to health concerns related to the potential transmission of COVID-19.

Amount of Leave—The paid supplemental leave is in addition to paid sick leave required by California Labor Code 246.

  • For full-time FSW or FSW scheduled to work, on average, at least 40 hours per week in the 2 weeks prior to the leave date—80 hours
  • For all other FSW:
    • Normal weekly schedule—the total number of hours the FSW is normally scheduled to work over 2 weeks; or
    • Variable schedule—14 x the average number of hours the FSW worked each day in the 6 months preceding the leave date.

Rate of Pay— At a rate equal to the highest of (but covered employers are not required to pay more than $511 per day ($5,110 in the aggregate)):

  • Employee’s regular rate of pay for their last pay period;
  • State minimum wage; or
  • Local minimum wage.

Supplemental Sick Leave is Not Required—If the employer as of the effective date of the order provides the employee with any supplemental benefit (such as paid leave) that is payable for the reasons listed above and compensates the employee in an amount equal to or greater than they would receive pursuant to the order.

Employee Notice of Need— Oral or written request.

Notice/Posting Requirements— Employers must post in each workplace a notice which will be available from the Labor Commissioner by April 23, 2020. If the covered employees do not frequent a workplace, the employer may disseminate the notice through electronic means, including by email.

Other

  • The supplemental paid sick leave can be used before using any other paid or unpaid leave, paid time off, or vacation time provided by the covered employer.
  • Employer can’t require an employee to find a replacement.
  • Employer can’t retaliate against an employee.

 

SAN FRANCISCO – Public Health Emergency Leave Ordinance

San Francisco Mayor London Breed signed an amended Public Health Emergency Leave Ordinance (PHELO) on April 17, 2020. Guidance and required postings from the Office of Labor Standards and Enforcement (OLSE) can be found here.

Effective—April 17, 2020 to June 17, 2020 unless reenacted, or upon termination of public health emergency, whichever occurs first.

Covered Employee—Employees who perform work within the geographic boundaries of the City of San Francisco.

Covered Employer—Employers with 500 or more employees worldwide. Employers of health care providers or emergency responders are permitted to limit use as described below. Employers that are “Covered Employers” under the federal FFCRA are NOT covered employers under the SF PHELO. Also, the PHELO does NOT cover private businesses located in “federal enclaves” such as the Presidio, Fort Mason, and the Golden Gate National Recreation Area.

Permitted Uses—To the extent any employee is unable to work (either at the employer’s workplace or telework) due to any of the following:

  • The Employee is subject to an individual or general Federal, State, or local quarantine or isolation order related to COVID-19. This includes, but is not limited to, an Employee who is unable to work due to Governor Newsom’s Executive Order N-33-20, the shelter-in-place Order No. C19-07b or any succeeding order requiring residents to stay in their homes during the emergency, or shelter-in-place orders issued in other Bay Area jurisdictions. Further, this includes an Employee who is a member of a “vulnerable population” as defined in Order No. C19-05 who is unable to work due to recommendations in Order No. C19-05, C19- 07b, or any order issued by Governor Newsom or Bay Area jurisdictions recommending or requiring additional restrictions for vulnerable or high-risk populations.
  • The Employee has been advised by a health care 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 by a health care provide 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 the Public Health Emergency.
  • The Employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the FFCRA, by the United States Secretary of Health and Human Services
  • An Employer of an Employee who is a health care provider or an emergency responder may elect to limit such an Employee’s use of Public Health Emergency Leave, but at a minimum such an Employee may use Public Health Emergency Leave to the extent that the Employee is unable to work (either at the Employee’s customary place of work or telework) due to either of the following: (1) The Employee has been advised by a health care provider to self-quarantine. (2) The Employee is experiencing symptoms associated with COVID-19, seeking a medical diagnosis, and does not meet the Centers for Disease Control and Prevention guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.

“Family Member” is the same as under the SF Paid Sick Leave Ordinance (PSLO), including a “designated person” as defined and designated under the PSLO.

PHELO may be taken regardless of whether and when the Employee is scheduled to work.

Amount of Leave

  • For full-time employees as of February 25, 2020—80 hours
  • For part-time employees as of February 25, 2020—a number of hours equal to the average number of hours over a two-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took any type of leave.
  • For employees hired after February 25, 2020—the number of hours equal to the number of hours the employee worked, on average, over a two-week period between the date of hire and the date upon which leave is taken, including the hours for which the employee took any type of leave.

Availability of Leave for Use—Leave is available for use as of April 17, 2020 and the ordinance is not retroactive.

Increments of Use—Employers may not require that employees take leave in increments of more than one hour.

Rate of Pay—Same as under the regular San Francisco paid sick leave law.

Offset—The amount of Public Health Emergency Leave may be reduced for every hour an employer allowed an employee to take paid leave or paid time off, not including previously accrued hours, on or after February 25, 2020 for any reasons described in the ordinance. Employers are permitted to offset any paid leave provided under the California Supplemental Paid Sick Leave Executive Order.

No Change in Policies—Employers may not change any paid time off policies on or after the effective date of the emergency ordinance except to provide additional leave.

Employee Notice of Need— An Employer may require the Employee to follow reasonable notice procedures in order to use Public Health Emergency Leave, but only when the need for Public Health Emergency Leave is foreseeable.

Certification/Documentation— An Employer may require an Employee to identify the basis for requesting Public Health Emergency Leave, but may not require the disclosure of health information or other documentation (including but not limited to a doctor’s note).

Notice/Posting Requirements—Notice must be provided to employees within 3 days after the SF Office of Labor Standards Enforcement has published the required notice. This may be accomplished by posting in the workplace, via electronic communication, and/or by posting on an employer’s web-based or app-based platform. The poster may be found here.

Payday Notice—To the extent feasible, an employer should include the amount of PHELO available, if required to provide such notice regarding paid sick leave available under California law. If an employer provides unlimited time off, the employer may indicate “unlimited” on the pay stub.

Separated and Furloughed Employees— The OLSE has clarified that PHELO is NOT available to employees who have been separated from employment based on all relevant circumstances including, but not limited to whether the employer has complied with provisions of the California Labor Code and California Unemployment Insurance Code. The OLSE has further stated that a “furlough” is NOT considered a “separation from employment” since there is no standard definition as to what constitutes “furlough” for private employers in California, and that the OLSE will review “furloughs” using the standards for determining “separations from employment.”

Other

  • Public Health Emergency Leave can be used before using other accrued paid time off. An employee can choose, but an employer may not require the employee to use other accrued paid time off provided by the employer before the employee uses Public Health Emergency Leave.
  • Public Health Emergency Leave is not paid out at separation from employment.
  • Leave entitlement expires upon the expiration of the emergency ordinance.
  • Employer can’t require an employee to find a replacement.
  • Employer can’t retaliate against an employee.

LOS ANGELES – Supplemental Paid Sick Leave Emergency Order

On April 7, 2020, the Mayor of Los Angeles issued an emergency order requiring employers with 500 or more employees in Los Angeles or 2,000 or more employees nationwide, to provide Los Angeles employees with Supplemental Paid Sick Leave Due to Covid-19.

Effective — April 7, 2020 through two calendar weeks after the expiration of the COVID-19 local emergency period.

Covered Employees— Employees who have been employed with the same employer from 2/3/2020 through 3/4/2020 and who have performed any work within the geographic boundaries of the City of Los Angeles.

Covered Employer—An employer that has either:

  • 500 or more employees within the City of Los Angeles; or
  • 2,000 or more employees within the U.S.

Permitted Uses — If the employee is unable to work or telework and takes time off:

  • Due to COVID-19 infection or because public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  • Because the employee 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;
  • Because the employee needs 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
  • Because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

Amount of Leave

  • For full-time employees (or employees who work at least 40 hours per week)—80 hours
  • For part-time employees and employees who work less than 40 hours per week—in an amount no greater than the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.

Rate of Pay—No more than $511 per day (or $5,110 in the aggregate).

Employee Request—Oral or written.

Required Documentation—None.

Offset—By every hour of paid leave provided on or after 3/4/2020, not including previously accrued hours, for any reasons under this order or in response to an employee’s inability to work due to COVID-19.

Exemptions

  • Emergency and health services personnel
  • Employers of employees that provides global parcel delivery services
  • Employers who have paid leave or PTO policy for the employee that provides a minimum of 160 hours of paid leave annually
  • New business as specified
  • Employees of government agencies
  • Business/organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave

Retaliation — Prohibited.

SAN JOSE – COVID-19 Paid Sick Leave Ordinance

On April 7, 2020, the City of San Jose enacted  the  COVID-19 Paid Sick Leave Ordinance  which requires San Jose employers who are not covered by the FFCRA Emergency Sick Leave provisions to provide paid sick leave to employees in San Jose.

Effective— April 7, 2020 through December 31, 2020.

Covered Employee—Has worked at least 2 hours within geographic boundaries of City of San Jose and leaves his/her residence to perform Essential Work.

Covered Employer—Employers subject to San Jose business license tax or maintain a facility in the City of San Jose that are NOT required to provide paid sick leave under the FFCRA Emergency Sick Leave provisions.

Permitted Uses

  • The employee is subject to quarantine or isolation by 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, or
  • The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Amount of Sick Leave

  • Full-time employee—80 hours.
  • Part-time employee—equal to the number of hours the employee worked on average over a two-week period.

Rate of Pay— Regular rate of pay up to $511 per day or $5,110 in the aggregate. If using sick time to care for another person, the pay is at two-thirds of regular rate of pay, up to $200 a day or $2,000 in aggregate.

Ordinance does not apply

  • If employee can work from home.
  • To employer that provides its employees, on April 7,2020, with some combination of paid personal leave at least equivalent to the paid sick time required by this law.
  • To an employer that operates a hospital if the employer provides its employees, within 2 weeks of the effective date of the law, with some combination of paid personal leave at least equivalent to the paid sick time required by the law.

Offset—If an employer provides some combination of paid personal leave less than the paid sick time required by the law, the employer must comply with the law to the extent of such deficiency.