Arent Fox

In March, the federal government enacted the Families First Coronavirus Response Act (FFCRA). That federal law required that employers with fewer than 500 employees provide paid leave for certain reasons related to the COVID-19 pandemic, while allowing in some cases for exemption of employers with fewer than 50 employees.

Some local California cities, however, have adopted their own local mandates to cover employees for whom the FFCRA did not provide paid leave. 

San Francisco and San Jose enacted their own ordinances to provide paid leave to employees to whom the FFCRA does not apply. San Francisco added to its existing paid sick leave ordinance to provide “Public Health Emergency Leave,” while San Jose adopted its new “COVID-19 Paid Sick Leave Ordinance.”

Which Employers Are Covered?

The San Francisco and San Jose ordinances sought to cover employees that the FFCRA does not cover. Specifically, San Francisco’s ordinance stated that it “addresses the emergency paid leave coverage gap” in the FFCRA “by extending paid leave to employees in the City who are employed by businesses with 500 or more employees.” The City’s new ordinance thus applies to employers with 500 or more employees nationally.

San Jose’s ordinance goes even farther. It applies not only to larger employers with over 500 employees, but also smaller employers who may be exempt from the FFCRA because they have fewer than 50 employees. San Jose expressly provided that its ordinance “sets forth paid sick-leave requirements for employers not covered by the federal Emergency Paid Sick Leave Act.” San Jose further defined its coverage as extending only to employers “that are not required – in whole or in part – to provide paid sick leave benefits” under federal law,” with benefits only required “to the extent of the benefit not provided under” federal law.

Which Employees Are Covered?

San Francisco requires that an employer provide the additional Public Health Emergency Leave to any employee who performs work within the geographic boundaries of the City and County of San Francisco, as well as someone who “performs limited work” within San Francisco’s geographic boundaries and otherwise would be considered an “employee” under San Francisco’s paid sick leave ordinance. An employee must have been employed as of February 25, 2020.

San Jose requires paid sick leave for an employee who worked at least two hours the City of San Jose’s geographic boundaries. In addition, San Jose included an important limitation: An employer only must provide paid sick leave to an Employee “who leaves his/her residence to perform Essential Work,” as defined by the county’s shelter-in-place order. Thus, employees who can work at home are not eligible.

Both ordinances provide that the test for whether an individual is an “employee” – and thus covered by the ordinance, or an independent contractor (which would not be) – is the so-called “ABC test” for independent contractor status, as set forth more recently in California law through Assembly Bill 5 in 2019and new Labor Code section 2750.3.

Uses for New Paid Sick Leave Benefit

Under San Francisco’s ordinance, an eligible employee unable to work or work from home may use Public Health Emergency Leave because of the following reasons:

  • Caring for a minor child due to school or daycare closure related to COVID-19;
  • Experiencing any substantially similar condition specified by the local health officer or as similarly defined in the FFCRA;
  • The employee, or a family member whom they are caring for, is: required by federal, state, or local order to quarantine or isolate due to COVID-19; advised by a health-care provider to self-quarantine because of COVID-19; or experiencing symptoms of COVID-19 and is seeking a medical diagnosis.

Similarly, under the San Jose ordinance, a covered employee may use paid sick leave because the employees is:

  • The employee is caring for a minor child because of school or daycare closure related to COVID-19, experiencing symptoms of COVID-19, or is seeking medical diagnosis; or
  • The employee, or a family member whom they are caring for, is required by federal, state or local order to quarantine or isolate because of COVID-19, or advised by a health-care provider to self-quarantine due to COVID-19.

How Much Paid Leave Available?

San Francisco requires up to 80 hours of Public Health Emergency Leave for eligible employees who worked full-time as of February 25, 2020. For part-time employees as of February 25, 2020, San Francisco mandates Public Health Emergency Leave for eligible employees up to the average number of hours that an employer scheduled the employee to work over two weeks during the previous six-month period. However, the total number of hours of paid leave taken in a week may not exceed the average number of hours for which the employee is normally scheduled over a one-week period.

Under San Jose’s ordinance, an employee also must give eligible full-time employees up to 80 hours of leave. Eligible part-time employees may take paid sick leave “equal to the number of hours he/she works on average over a two (2)-week period.

At What Rate Are Leave Benefits Paid?

Employees who take paid leave under the San Francisco ordinance must be paid in the same manner as other paid sick leave under the San Francisco’s paid sick leave ordinance, either at the employee’s regular rate of pay for the workweek or by using a 90-day lookback period.

The San Jose ordinance requires that employees be paid for “properly used sick leave” at the employee’s regular rate of pay. Using the limits in the FFCRA, San Jose limits such pay to $511 a day or $5,110 in the aggregate. For employees “using sick time to care for another person,” San Jose further limits such pay to two-thirds of the employee’s regular rate of pay, up to $200 per day and an aggregate of $2,000.

Are Employers Required to Notify Employees?

San Francisco, but not San Jose, included a notice requirement for employees. Employers in San Francisco must post or provide a written notice from the city’s Office of Labor Standards Enforcement. The ordinance further requires employers to provide the notice to employees either by posting the notice in a conspicuous place; emailing the notice; or posting the notice on an internal employee website. The notices must be provided in English, Spanish, Chinese, and any other language spoken by at least five of the employees who are, or were, at the workplace or job site. The notice is available here.

How Long Will City Requirements Last?

San Francisco’s ordinance expires 61 days after its enactment unless reenacted and extended. It also terminates upon the end of the public health emergency declared in San Francisco, if the emergency expires before the ordinance’s automatic end date. In San Jose, that city’s ordinance sunsets on December 31, 2020, the same ending date for the federal paid sick leave requirement in the FFCRA.

Conclusion

The San Francisco and San Jose ordinances are yet another governmental effort to provide some relief to employees in response to the COVID-19 crisis. Employers with employees in San Francisco and San Jose must take note and ensure compliance. These local ordinances in California, however, add another layer of employment requirements with which employers must comply. Employers should closely monitor these new developments and any further changes and perhaps consult with counsel for guidance on complying.

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