Seyfarth Synopsis: The Sacramento Board of Supervisors has joined many other California locales, including Los Angeles City and County, San Francisco, Oakland, and San Jose, in requiring employers to provide covid-related paid sick leave. On top of required paid sick leave for designated reasons, the Ordinance contains numerous other employer obligations, such as vigorous cleaning protocols and an employee’s right to refuse to work.
Traditionally, a business operating in an unincorporated community has benefited from the comparative dearth of local regulation. Late last month, however—consistent with the flurry of COVID-19 mandatory paid sick laws across the state—the Sacramento County Board of Supervisors passed the Sacramento County Worker Protection, Health, and Safety Act of 2020. The law went into effect October 1, 2020, and requires compliance starting on October 16, 2020.
This Ordinance applies only to businesses located in the unincorporated areas of Sacramento County, which include the communities of Antelope, Arden-Arcade, Carmichael, Clay, Courtland, Elverta, Fair Oaks, Florin, Foothill Farms, Franklin Freeport, Fruitridge Pocket, Gold River, Herald, Hood, La Riviera, Lemon Hill, Mather, McClellan Park, North Highlands, Orangevale, Parkway, Rancho Murieta, Rio Linda, Rosemont, Vineyard, Walnut Grove, and Wilton.
The Ordinance is almost identical to an ordinance passed by the Sacramento City Council in July, which we wrote about here. The Board appears to have taken its inspiration from Los Angeles County, which passed its own Sick Leave Ordinance on the heels of the City of Los Angeles doing the same. Like the City of Sacramento Ordinance, the County Ordinance contains two main thrusts: (1) employee safety protocols and (2) additional paid sick leave requirements. The Ordinance took effect on October 1, 2020, and sunsets on December 31, 2020, but it is possible it may be extended if the state of emergency continues.
Which Employers Are Covered?
Like most other, local sick leave ordinances, as well as the statewide COVID-19-related sick leave requirement —which we wrote about here—the supplemental paid sick leave provisions only apply to employers with 500 or more employees nationally, but health care providers and emergency responders are exempt. Employers of all stripes and sizes, however, must comply with the Ordinance’s COVID-19 safety protocols.
What Are The Safety Protocols?
The Ordinance requires all employers to implement specified social distancing, mitigation, and cleaning protocols and practices. Specifically, employers must (i) maintain and implement specified cleaning and disinfection protocols, (ii) establish protocols for specific steps if a worksite is exposed to a person with a probable or confirmed case of COVID-19, (iii) provide employees with regular access to handwashing, hand sanitizer, and disinfectant supplies, (iv) clean common areas daily and between shifts, (v) provide face-coverings for employees, and (vi) establish physical distancing protocols for the workplace, including mandatory face coverings.
Employers must provide written notice of the new protocols to employees in both English and any language spoken by at least 10% of the employees at the worksite.
For employers that have employees who work at worksites owned, maintained, leased, or controlled by another party (such as temporary agency workers and subcontracted employees), the employer can satisfy its obligations under the Ordinance by contacting the entity that covers the worksite to encourage compliance with the safety protocols. As a best practice, any such communications with third parties should be in writing and be maintained.
What About The Paid Sick Leave?
The Ordinance, like the Sacramento City Ordinance, requires employers to provide full-time employees with 80 hours of paid sick leave; part-time employees receive paid time off equal to their average number of hours worked over a two-week period (based on a six-month look back of average hours worked).
Where an employee is unable to work or telework, available reasons for taking leave under the Ordinance essentially track the FFCRA and California’s new COVID-19 Supplemental Paid Sick Leave, including:
And the Ordinance also includes a unique qualifying reason:
The sick leave is in addition to, not in lieu of, any other paid sick leave. In other words, an employer may not require an employee to use other accrued paid time off before using sick leave hours mandated by the Ordinance. Also, the Ordinance, like most other paid sick leave laws, allows employers to request the reason for using sick leave, but does not employers to require documentation or a doctor’s note.
As under the FFCRA, employees under the Ordinance are entitled to a reduced rate of pay if they take time off to care for a family member as opposed to themselves. For time spent caring for a family member, the employer may pay two-thirds of the employee’s regular rate of pay, up to a maximum of $200 per day.
The Ordinance does contain an offset provision, enabling employers that have granted additional paid sick leave since March 19, 2020, specifically for COVID-19-related reasons, to credit that leave against the number of hours the Ordinance requires. For example, if an employee is a food-sector worker entitled to leave hours under Executive Order N-51-20 (now codified by AB 1867), the employer may use those leave hours as a credit against the number of hours required by the Ordinance. Moreover, an employee is not entitled to “carry over” unused sick leave—it expires when the Ordinance sunsets.
Note that the Ordinance does not contain an exemption for workplaces subject to a collective bargaining agreement, despite lobbying for the exemption from local groups.
The Ordinance Gives My Employees A Right To Refuse To Work?
An employee may refuse to work where the employee has a reasonable belief that the employer is in violation of the Ordinance’s required safety practices and protocols, and the employee has provided notice to the employer of the alleged violation. The County may—but need not—investigate the allegations, and the employer, within 15 days of written notice from the County, must cure any alleged violation the County has substantiated.
If the County finds no violation, or if the employer provides proof that it’s cured any violation, then the employee no longer has the right to refuse work. The Ordinance does not explain what happens if the County does not investigate the alleged violation, or if the employee can continue to refuse to work if no investigation is initiated.
What About Enforcement?
The Ordinance creates a private right of action for employees, but only when pressing a claim for retaliation for exercising rights under the Ordinance, i.e., where an employee is fired or discriminated against for a proper refusal to work.
But employees may commence an action only after (1) the employee provides written notice of the provisions alleged to have been violated and (2) the employer has had 15 days to cure the alleged violation. The Ordinance also provides the County authority, not to impose criminal sanctions, but to remedy any violation of the Ordinance pursuant to Sacramento County Code Chapter 16.18. The County may also bring a civil action in Superior Court.
Navigating federal, state, and local COVID-19 related laws and ordinances remain a significant challenge, particularly in California, where many localities have passed some kind of sick leave requirement. While there is now a statewide requirement to provide supplemental sick leave to employees, the new Sacramento Ordinance’s permitted reasons for use are more expansive than the statewide requirements, and determining the interplay between them may be complicated. As such, if you have questions or concerns regarding which types of regulations may apply to your workforce, and how to implement them, reach out to your favorite Seyfarth attorney.