A Golden State Of Mind: Two Bay Area Cities Supplement Federal Leave

We recently discussed San Francisco’s efforts to stay On The Cutting Edge Of The Cutting Edge with regard to Paid Sick Leave, but now both San Francisco and San Jose have passed new employee leave ordinances setting the bar even higher.

On April 7, 2020, the San Francisco Board of Supervisors unanimously approved the Public Health Emergency Leave Ordinance (“PHELO”) requiring private employers with 500 or more employees to provide public health emergency leave consistent with the federal Families First Coronavirus Response Act (FFCRA), which was discussed in detail in our post, HR 6201: What Employers Need To Know.  The emergency ordinance took effect April 17, 2020.   

On the same day, the City of San Jose also voted to enact an emergency Paid Sick Leave Ordinance (“PSLO”) applying its provisions to those employers who were not required to provide paid sick leave under the FFCRA.  This emergency ordinance took effect April 8, 2020. 

Both cities clearly set their sights on certain gaps created by the recently enacted federal sick leave provisions in the FFCRA, which exempt employees of private-sector companies with more than 500 workers and potentially exempts those of businesses with fewer than 50 workers. 

San Francisco’s PHELO 

Employees covered by the PHELO include full-time, part-time, temporary, seasonal, salaried, and commissioned workers who have performed at least 56 hours of work within the San Francisco City and County’s geographic boundaries during the prior year.   

The PHELO addresses the FFCRA’s coverage gap by establishing minimum requirements for private employers with more than 500 employees, subject to certain exclusions for healthcare providers, emergency responders and collectively bargained employees. 

Pursuant to the PHELO, full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to sick leave hours equal to the number of hours the employee worked on average over a two-week period. 

The hours of emergency leave provided for under the PHELO is in addition to paid sick leave mandated by California law or San Francisco Ordinance.  Notably, though, if an employer has already provided such additional paid leave since February 25, 2020 for COVID-19 related purposes (not including previously accrued hours), any hours will be offset against the 80-hour requirement (e.g., if an employee already used 16 hours of additional paid leave beyond that legally required, the employee is only entitled to 64 more hours). 

Also, employers cannot require employees to use other accrued paid time off (paid sick leave, PTO, vacation, etc.) before they can use PHELO. However, employees may voluntarily choose to use other accrued paid leave before using PHELO. 

PHELO may only be used if an employee is: (a) under a quarantine or isolation order; (b) under a health care provider’s order to self-quarantine; (c) experiencing symptoms of COVID-19 and seeking care; (d) caring for a family member under quarantine/isolation orders or experiencing symptoms; or (e) caring for a family member whose school or place of care has been closed or rendered unavailable. 

PHELO will expire on June 17, 2020 unless reenacted by the Board of Supervisors, or upon the termination of the Public Health Emergency, whichever occurs first. 

San Jose’s PSLO 

San Jose’s PSLO also requires businesses exempt from the FFCRA to provide an immediate 80 hours of sick leave for employees who have performed at least two hours of work within the City’s boundaries and who continue to leave their residences to perform essential work, as defined by the Santa Clara County Public Health Officer’s OrderThus, San Jose employers need not allow employees to use this leave if they are teleworking. 

PSLO may only be used if an employee is: (a) under a quarantine or isolation order or caring for someone under a quarantine or isolation order; (b) under a health care provider’s order to self-quarantine or caring for such a person; (c) experiencing symptoms of COVID-19 and seeking care; or (d) caring for a minor child whose school or daycare has been closed. 

The PSLO requires a covered employer to pay the employee for properly used sick leave at the employee’s regular rate of pay up to $511 a day not to exceed an aggregate of $5,110. If the employee is using sick time to care for another person, the employer need only pay the employee two-thirds of the regular rate of pay up to $200 a day not to exceed an aggregate of $2,000. 

Employers Must Remain Diligent 

As soon as they are signed into effect, these emergency city ordinances will require private employers who were exempted from providing emergency paid sick leave under the FFCRA to provide nearly identical paid leave to their employees who have worked in San Francisco or San Jose. Employers whose employees perform work in these jurisdictions should carefully evaluate the San Francisco PHELO and San Jose PSLO to ensure that policies and practices are in place for compliance. 

State and local public entities continue to move the bar for employers throughout California with very little notice.  Employers must continue to be diligent in monitoring this avalanche of developments and consulting AALRR counsel as needed to ensure they remain compliant with applicable law.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo

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