Labor & Employment Law Blog

Oakland’s Emergency Paid Sick Leave Ordinance (“PSLO”) took effect immediately and will remain in place through December 31, 2020, unless extended by further ordinance. 

1. Who Is Covered? 

The PSLO has a broad reach, but also many exemptions.  Oakland employers will need to review the ordinance carefully to determine its application to their operations. 

Employees:  Covered employees include those who worked for a qualifying employer for at least two hours after February 3, 2020 within the geographic boundaries of the City of Oakland, including the Port of Oakland.  

Employers:  The PSLO covers private employers who employ, directly or indirectly, qualifying employees, including those employers already covered by the FFCRA.  (Employers covered by the FFCRA may credit those leave hours provided under the FFCRA against the obligation under this PSLO.)  Notably, the PSLO also covers a temporary employment agency, staffing agency or similar entity that directly or indirectly employs an employee, as well as an employer who contracts with a contractor for the provision of workers jointly and severally.  

Several exemptions exist.  Under the PSLO, employers of health care providers or emergency responders may elect to be exempted from its requirements and must comply with the FFCRA’s regulations for such an election.  

The ordinance also creates an exemption for “small” employers (that employed fewer than 50 employees between February 3, 2020, and March 4, 2020).  This exception does not apply, however, to franchisees associated with a franchisor, or a network of franchises, that collectively employ more than 500 employees, or to janitorial employers that have not complied with California Property Service Workers Protection Act registration requirements. 

There is also an exemption for employers that, after February 3, 2020, provide employees with the ability to accrue at least 160 hours of paid personal leave.  For this exemption to apply, each employee must have immediate access to at least eighty (80) hours of paid leave after May 12, 2020, and any employee who used leave prior to that date and has fallen below eighty (80) hours must be provided additional leave to bring their available balance to eighty (80) hours. 

Finally, an employer is exempt if it provides its employees immediate access to paid personal leave in amounts at least equivalent to what the PSLO requires, and that may be used for the purposes.  This paid personal leave must have been in addition to any paid leave the employer was otherwise required to provide pursuant to a collective bargaining agreement, employment contract, or public policy. 

          B.  Emergency Paid Sick Leave Requirements

               1. Calculation of Emergency Paid Sick Leave Hours 

Full-Time Employees:  An employee who worked at least forty (40) hours per week within the City of Oakland from the period of February 3, 2020, to March 4, 2020, shall receive eighty (80) hours of emergency paid sick leave hours. 

Part-Time Employees:  An employee who worked less than forty (40) hours per week during the period of February 3, 2020, to March 4, 2020, shall receive an amount of emergency paid sick leave hours equal to the average number of hours the employee worked within the City of Oakland over fourteen (14) days during that period.  The fourteen days used for this calculation must be the fourteen (14) days with the highest number of hours worked over that period.  (Note: This form of calculation – using the highest stretch of fourteen (14) days – must also be used for any workers who began work after March 4, 2020.)

The emergency paid sick leave amount paid to an employee shall not exceed $511 per day or $5,110 in the aggregate. 

               2. Reasons Emergency Paid Sick Leave May Be Used

An employer shall allow Emergency Paid Sick Leave to be used to the extent the employee cannot work (or telework) for the following reasons:

1. The employee is subject to a federal, State, or local quarantine or isolation order related to COVID-19;
2. The employee has been advised by a health care provider to self quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to an order as described in Section 5.94.030(B)(a)(i) or has been advised as described in Section 5.94.030(B)(a)(ii);
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions;
6. The employee is experiencing any other substantially similar condition specified by the federal Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury;
7. To enable the employee is to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
8. To take time off work because the employee:
   1. Is at least 65 years old;
   2. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
   3. Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
   4. Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Except for that final provision regarding a healthcare certified condition, an employer cannot require an employee to provide a doctor’s note or other documentation to justify the use of emergency paid sick leave.

An employee can use this emergency leave in one-hour increments and intermittently, as necessary.  Employers cannot require employees to use the leave in more than one-hour increments.

Under the PSLO, retaliatory action against the employee is expressly prohibited.  Further, any waiver by an employee of the rights and obligations under the PSLO will be deemed void and unenforceable.

Amendment to Non-Emergency Paid Sick Leave

The ordinance also amends Oakland’s regular paid sick leave ordinance to require employers to pay all unused paid sick leave accrued under Oakland Ordinance 5.92.030 immediately upon separation.  The payout requirement does not appear to apply to the new emergency paid sick leave.  

Employers Must Remain Diligent 

Oakland is just one of the latest jurisdictions in California to require supplemental paid sick leave for employees who work within its boundaries.  State and local public entities continue to contemplate further actions to be taken to aid the public in dealing with this pandemic.  Even – and especially – as counties throughout California begin to attempt to reopen their economies for something resembling “business as usual,” regulations continue to change, requiring employers to be ever diligent in monitoring this inundation of legal developments.  As the obligations can be complex, and the risk of non-compliance is high, employers should consult their legal counsel as needed to ensure they remain compliant with applicable law.

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