California Fireworks: Sacramento, Santa Rosa, and San Mateo County Enact Emergency Paid Sick Leave Ordinances

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In the span of just over one week, three local governments in Northern California enacted emergency paid sick leave ordinances. The City of Sacramento enacted its ordinance on June 30, 2020, while the City of Santa Rosa and San Mateo County enacted their laws on July 7. Santa Rosa's ordinance took effect immediately, July 7, and San Mateo County's law took effect the following day, July 8. Although enacted before these laws, the Sacramento ordinance does not become operative until July 15. Generally, all three ordinances will remain in effect through December 31, 2020.

In part, these laws aim to fill gaps left by the federal Families First Coronavirus Response Act (FFCRA), which applies to employers with 499 or fewer employees only and allows certain employers to exempt their employees wholly or partly from coverage. Below we separately address what each ordinance requires, demonstrating how differently cities may approach implementation of emergency paid sick leave ordinances. These varying approaches further complicate the patchwork of emergency paid sick leave requirements in California, which includes a statewide mandate for certain food sector workers and now nine local ordinances.

City of Sacramento

The Sacramento Worker Protection, Health, and Safety Act requires not just that employers provide supplemental paid sick leave (SPSL), but also grants employees the right to refuse work under certain conditions and requires employers to implement certain safety practices and protocols. The law becomes operative July 15, 2020 – 15 days after the law's June 30 effective date – and will remain in effect through December 31, 2020; however, the city will evaluate the law's impacts and effects by September 28, 2020 (within 90 days of the effective date).

Covered Employers, Employees & Family Members: The ordinance applies to employers with 500 or more employees nationally. Under the law, covered employees are people who work in Sacramento for an employer and are an employee per California Labor Code section 2750.3 (i.e., "AB 5"). However, an employer of an employee who is a health care provider or emergency responder may exclude those employees from the ordinance's requirements. Notably, there is no potential exception for companies with unionized workforces.

For determining who constitutes a "family member" for whom employees may use SPSL, the ordinance uses the definition in California's generally applicable paid sick leave law, the Healthy Workplace Healthy Family Act, i.e., a child, grandchild, grandparent, parent, sibling, spouse or domestic partner.

Amount of Leave: SPSL is in addition to any other paid sick leave, paid time off, or vacation time an employer provides by statute, policy, or collective bargaining agreement (CBA). An employer cannot require an employee to use other accrued paid sick leave, paid time off, or vacation time before using SPSL.

Employers must provide 80 hours of SPSL to full-time employees, i.e., those who work 40 or more hours per week or who an employer classifies as full time. The ordinance considers other employees "part-time," who are entitled to an amount of SPSL hours equal to the number of hours they work on average over a two-week period. To calculate this amount, employers use the number of hours the employee worked each week during the six months immediately preceding the law's effective date, multiplied by two.

The ordinance contains two offset provisions that may reduce the amount of SPSL an employer needs to provide to its employees. First, if an employer granted additional paid sick leave – beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or CBA – since March 19, 2020, specifically for use for COVID-19-related matters the ordinance describes, it can credit those hours against the number of SPSL hours the law requires. Second, if California Executive Order N-51-20 – COVID-19 paid sick leave for certain food sector workers – applies, the employer may use those leave hours as an offset.

Covered Uses: An employee who is unable to work or telework may use SPSL for the following purposes: 1) employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19, or is caring for a family member who is quarantined or isolated due to COVID-19; 2) a health care provider advises an employee to self-quarantine due to COVID-19 or the employee is caring for a family member who is so advised; 3) employee chooses to take off work because the employee is over the age of 65 or is considered vulnerable due to a compromised immune system; 4) employee is off work because the employer it works for or a specific work location temporarily ceases operation due to a public health order or other public official’s recommendation; 5) employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or 6) employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Requesting & Verifying Leave: For foreseeable absences only, an employer may require the employee to follow reasonable notice procedures. If an employer requests, an employee must provide the basis for requesting SPSL, but a doctor's note or other documentation is not required.

Payment: Generally, an employer must pay SPSL at the employee’s regular rate of pay. However, for an employee who uses SPSL to care for a family member, the employer may pay two-thirds of the employee’s regular rate of pay. The maximum amount an employer must pay is $511 per day or $5,110 overall; however, for an employee who uses SPSL to care for a family member, the maximum amounts are $200 per day and $2,000 overall. Note that, when employment ends, employers need not cash out unused SPSL.

Prohibitions: An employer cannot:

  • Request an employee to waive a right under the law (any such waiver is contrary to public policy, void, and unenforceable);
  • Require an employee to find a replacement worker as a condition of using SPSL;
  • Issue any discipline or attendance points based on a no-fault attendance policy for an employee’s SPSL use; and/or
  • Discharge, discipline, discriminate against, retaliate against, or reduce the compensation of any employee for seeking to exercise the employee’s rights under the law by any lawful means by participating in proceedings related to the law.

Enforcement: A unique aspect of the ordinance is that the only private right of action available is for retaliation violations. Moreover, employees can only file suit, within one year of a violation, after they provide written notice to the employer of the provision alleged to have been violated and all facts supporting the alleged violation and give the employer 15 days from receipt of that written notice an opportunity to cure any alleged violation. Assuming a lawsuit proceeds, and an employee prevails, the court can award actual damages, punitive damages, reinstatement, front and back pay, other legal or equitable relief, as well as attorneys' fees and costs.

Otherwise, the ordinance cross-cites to pre-existing city law concerning administrative enforcement, which appears to fall to the city attorney or another department that can enforce ordinances. Sacramento has a sliding scale for administrative penalties that vary based on conduct. Although not explicitly stated in the ordinance, it is likely the penalty is $100 to $999.99 per violation, with each day a violation continues or occurs constituting a separate violation.1

Employers Receiving Financial Assistance from City: Finally, any employer that receives financial assistance from the city through any program designed to provide financial assistance to businesses due to COVID-19 must certify that it complies with the ordinance as a condition of receiving funds. An employer that is determined to have violated the law must refund any such financial assistance it received.

City of Santa Rosa

On July 7, 2020, the Santa Rosa City Council enacted its temporary sick leave ordinance, which took effect that day. It will remain in effect through December 31, 2020, though the city can extend its duration. At times the ordinance's actual text is unclear, so, where possible, our discussion relies on supplemental documents presented to the council explaining the proposal – the staff report by the Economic Development Division Director (EDDD) and Chief Assistant City Attorney, and an EDDD presentation – and discussions the council had during its meeting.

Covered Employers & Employees: The ordinance generally covers all private employers. It applies to employers with 500 or more employee nationally, i.e., those the federal Emergency Paid Sick Leave Act (EPSLA) does not cover. Additionally, it applies to EPSLA-covered employers to the extent the ordinance provides additional benefits. The ordinance says it does not apply to employers with fewer than 50 employees that would qualify for EPSLA exemption, but then says the exemption applies only to employees who are caring for a child under the ordinance. Per the staff report, what the drafters intend this to mean is "[e]mployers with less than 50 employees that are experiencing severe economic hardship are not obligated to provide the benefit for employees needing to provide child care." Although the ordinance borrows this exemption from the EPSLA, the supplemental documentation notes the ordinance does not borrow all EPSLA exemptions, e.g., the ordinance covers employees who are health care providers and emergency responders.

Under the ordinance, an employee is a person employed by an employer who has worked at least two hours in Santa Rosa. Employers must provide paid sick leave to each employee who performs "allowed or essential work," which means work activities and services permitted in Sonoma County Public Health Officer orders.

Amount of Leave: Under the ordinance, full-time employees get 80 paid sick leave hours, whereas part-time employees get an amount equal to the number of hours they work on average over a two-week period. Employees who work part of their hours in Santa Rosa get paid sick leave hours equal to the number of hours they work on average over a two-week period in Santa Rosa. The ordinance does not define full- or part-time, or discuss the time period employers use to determine an employee's two-week average.

The ordinance contains a provision titled "Exemption/Offset." This provision says the ordinance does not apply to an employer that has provided employees, on July 7, with some combination of paid personal leave at least equivalent to the paid sick leave the ordinance requires. An employer that provides some combination of paid sick leave amounting to less than what the ordinance requires must comply with the law to the extent of the deficiency. Although this is language similar to the language in San Jose’s emergency paid sick leave ordinance, the Santa Rosa ordinance's provision also provides that the temporary leave is in addition to leave employers normally provide. During the council meeting, staff regularly contended the provision is intended to be a complete or partial offset for employers that provided additional COVID-19 related leave.

Employees cannot carry over leave between years.

Covered Uses: Unlike the federal EPSLA and numerous mini-FFCRA ordinances, there is no requirement that an employee be unable to work and/or telework to use leave, which. employees can use for the following purposes: 1) employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19; 2) 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; 3) employee experiences symptoms of COVID-19 and is seeking medical diagnosis; 4) employee is caring for someone who is quarantined or isolated, or otherwise unable to receive care, due to COVID-19; or 5) employee is caring for a minor child because a school or daycare is closed, or childcare provider is unavailable, due to COVID-19.  Concerning "otherwise unable to receive care," based on a discussion during the city council meeting, this requirement is akin to absences for childcare provider unavailability, though for other individuals such as the elderly or those with disabilities (the council uses "someone" to align with the federal EPSLA). However, unlike other mini-FFCRA ordinances, this provision was included alongside a covered use other than childcare.

Verification & Documentation: The ordinance's sole provision on this topic provides that a written note from a health care provider who advises self-quarantine is not required. Notwithstanding this being the only item addressing documentation, during the city council meeting it was made clear that its inclusion was simply to reinforce standards in the federal EPSLA, which the ordinance follows.

Payment: Employers must pay employees for paid sick leave at their regular rate, up to $511 a day, not to exceed an aggregate amount of $5,110. There is no lower two-thirds the regular rate amount for certain absences, so employers covered by the federal EPSLA and this ordinance must pay the ordinance's higher rate. When employment ends, employers need not cash out unused SPSL, which is unavailable once the ordinance expires.

Prohibitions: Employers cannot require employees to find a replacement worker as a condition of using leave. Additionally, employers cannot discharge, reduce in compensation or otherwise discriminate against any employee for opposing any practice the law prohibits, for requesting to use or using paid sick leave, for participating in proceedings related to the law, for seeking to enforce rights under the law by any lawful means, or for otherwise asserting rights under the law.

Enforcement: The ordinance does not designate an agency to enforce or interpret the ordinance. Rather, this task falls to the courts. Employees can file a lawsuit in state court and, if successful, a judge can award them: reinstatement if unlawfully discharged; paid sick leave unlawfully withheld; other legal or equitable relief the court deems appropriate; and reasonable attorneys' fees and costs.

San Mateo County

The San Mateo County Board of Supervisors enacted its ordinance on July 7, though the paid sick leave obligation in the county's unincorporated areas began on July 8, 2020. The law will remain in effect through December 31, 2020.

Covered Employers & Employees: The ordinance applies to employers with 500 or more employees in the United States, the District of Columbia, or any U.S. territory or possession. Covered employees are those who are or have been required to perform work in the county's unincorporated areas since January 1, 2020. Moreover, the ordinance creates a presumption of employment, with the burden on a company to demonstrate a worker is actually an independent contractor. The ordinance excludes, however, food sector workers covered by California Executive Order N-51-20, a statewide emergency paid sick leave measure. Additionally, for companies with unionized workforces, parties to a CBA can waive the law's requirements if the agreement explicitly sets forth the waiver in clear and unambiguous terms.

Amount of Leave: Employers must provide full-time employees normally scheduled to work 40 or more hours per week 80 SPSL hours. Part-time employees employers normally schedule to work fewer than 40 hours per week receive an amount no greater than the average number of hours they work in a two-week period, which employers calculate using the period of January 1 through July 7, 2020.

SPSL is in addition to any paid sick leave the employer provides per California's generally applicable law, the Healthy Workplace Healthy Family Act, or per preexisting time off they provided before March 16, 2020. Employers cannot require employees to use other paid or unpaid time off the employer provides before, or in lieu of, SPSL.

However, employers can reduce the amount of SPSL they must provide by the amount of additional paid leave for COVID-19 purposes they gave an employee between March 17 and June 30, 2020, or supplemental leave they gave the employee under another jurisdiction's law (e.g., San Francisco's Public Health Emergency Leave Ordinance). Moreover, per the ordinance, "[i]f an Employer provided Voluntary COVID-19 Leave to an Employee at a rate of pay or hourly accrual rate less than that provided in Section 4, then such amounts or hours shall be offset against such rates and hours as the Employee would have received as set forth in Section 4." It is unclear whether this means: 1) employers receive a one-for-one offset even if they provided leave at a lower pay rate or; 2) they receive a reduced offset based on what percentage of an ordinance hour the lower-paid hour represents.

Covered Uses: The ordinance contains a list of covered uses generally, and another more limited list for employers of health care provider, aviation security, or emergency responder employees.

Generally, employees can use leave if they cannot work or telework because: 1) a health care provider advises an employee to isolate or self-quarantine to prevent the spread of COVID-19; 2) an employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis; 3) the employee needs to care for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or a health care provider advises the individual to self-quarantine related to COVID-19, or the individual is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or 4) the employee takes time off work because of a need to provide care for an individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation. Under the ordinance, an "individual" is an employee's immediate family member, a person who regularly resides in the employee's home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if quarantined or self-quarantined, or whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.

Certain companies may offer more limited leave if they are an employer of an employee who is a health care provider or emergency responder (both defined per the FFCRA). Additionally, they can limit leave if they employ an aviation security worker (one who performs work on behalf of the federal Transportation Security Administration) and make a good-faith determination that granting the employee care-for-others leave would render them unable to meet staffing level requirements needed to ensure staffing shortages do not adversely affect airport operations. These employers can restrict leave to when employees are unable to work at their customary place of work or telework because: 1) a health care provider advises an employee to isolate or self-quarantine to prevent the spread of COVID-19; or 2) the employee is experiencing COVID-19 symptoms, is seeking a medical diagnosis, and does not meet the Centers for Disease Control and Prevention’s guidance for criteria to return to work for health care personnel with confirmed or suspected COVID-19.

Requesting & Verifying Leave: An employer must provide leave upon an employee's written request, which includes but is not limited to email and text, but may request information supporting a request according to the FFCRA.

Payment: When an employee use SPSL, employers must pay them their regular rate of pay according to the FFCRA. However, unlike the FFCRA, there is no lower two-thirds the regular rate of pay amount for certain absences. The maximum amount of SPSL is $511 per day and $5,110 in the aggregate.

Prohibitions: A prospective waiver by an employee of any or all of the provisions of the law is contrary to public policy, void, and unenforceable. Additionally, employers cannot discharge, reduce in compensation or otherwise discriminate against any employee for: 1) opposing any practice the law prohibits; 2) requesting to use or using SPSL; 3) participating in proceedings related to the law; 4) seeking to enforce rights under the law by any lawful means; or 5) otherwise asserting rights under the law.

Enforcement: The ordinance does not designate an agency to enforce or interpret the ordinance. Instead, employees can file a lawsuit in state court and, if they prevail, a court can award them reinstatement if unlawfully discharged, back pay and SPSL that were unlawfully withheld (calculated at the employee's average rate of pay), other legal or equitable remedies the court deems appropriate, and reasonable attorneys' fees and costs.

Next Steps

Because the ordinances took effect immediately (Santa Rosa), basically immediately (San Mateo County), or will take effect shortly (Sacramento), and no guidance will be forthcoming, employers should devote attention now to constructing, or revising, policies and procedures to comply with these new paid leave requirements. Employers with Santa Rosa operations should also monitor developments at the county level because Sonoma County has been considering enacting its own ordinance.

 

Footnotes

1 There are penalty levels (A-D). Level D violations, which we discuss, are those other than (A)-(C) violations. Level A violations require a substantial probability that death or serious physical harm [$5,000 - $25,000]. Level B violations either present the threat, but not substantial probability, of serious physical harm or present circumstances likely to cause and/or do cause serious harm to property or present a conscious and willful disregard of a hearing examiner’s order(s) or orders or notices of violation issued by any agency or commission [$2,500 - $4,999.99]. Level C violations either are likely to cause and/or do cause harm to property or show repeated or continuous noncompliance with a hearing examiner’s order(s) or orders or notices of violation issued by any agency or commission [$1,000 - $2,499.99].

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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