CALIFORNIA EMPLOYERS ADVISED TO REVIEW AND ENSURE COMPLIANCE WITH ANY LOCAL PAID SICK LEAVE LAWS DURING COVID-19 PANDEMIC

By SHLC on April 1, 2020 in Uncategorized
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As California employers begin to digest new federal legislation mandating and funding extended paid leave benefits relating to COVID-19, employers must also be mindful of state and local requirements for employee paid sick leave.  In this post, we examine the latest developments addressing paid sick leave by Los Angeles, San Francisco, Emeryville, Oakland, San Diego, Santa Monica, Berkeley, and San Jose. Further, Fresno County has adopted an ordinance requiring employers to check their employees for symptoms of COVID-19 before allowing them to work.  A screening checklist is also available for use in complying with the ordinance.

City of Los Angeles

On Friday, March 27, 2020, the Los Angeles City Council passed the COVID-19 Supplemental Paid Sick Leave Ordinance (“Ordinance”).  The law is currently awaiting Mayor Garcetti’s signature.  While this law would be the first known law of its kind in California to date, some municipalities with local paid sick leave ordinances are modifying rules to account for the pandemic, and other cities may soon enact ordinances or modifications of their own.

The Ordinance is similar to the federal Families First Coronavirus Response Act (FFCRA), but applies only to companies with 500 or more employees nationally while the FFCRA applies to employers with fewer than 500 employees.  See https://suttonhague.com/coronavirus/.

Under the Ordinance, full-time L.A. employees are entitled to up to 80 hours of sick leave and part-time employees to an amount no greater than the employee’s average two-week pay. The Ordinance defines the two-week pay period beginning February 3, 2020 through March 4, 2020.  Benefits are capped at $511 per day or $5,110 total.

Upon oral or written request, employers must provide Supplemental Paid Sick Leave for the following reasons, which are more expansive than those provided under the FFCRA:

  • A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19.
  • The employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system.
  • The employee must care for a family member who is not sick but whom public health officials or healthcare providers have required or recommended isolation or self-quarantine;
  • The employee must care for a qualifying family member whose senior care provider, school, or child care provider temporarily ceases operations in response to a public health or other public official’s recommendation.

Notably, employers are prohibited from requiring a doctor’s note or other documentation relating to the use of Supplemental Paid Sick Leave.  While it lacks the tax rebate benefits of its federal counterpart, the Ordinance does provide for a kind of offset.  Specifically, for employers who allowed employees to take paid sick leave starting on or after March 4, 2020, the Ordinance allows employers to count those hours as part of the paid sick leave allotment under the Ordinance.  The offset would be available only if the paid time off was in addition to the California or Los Angeles-mandated paid sick leave.

For violations of the Ordinance, an employee may file a civil lawsuit in state court and be awarded reinstatement, back pay, Supplemental Sick Pay, and attorneys’ fees and costs.  As with similar state and local employee benefit laws, retaliation against an employee attempting to exercise rights under the Ordinance is prohibited.

City and County of San Francisco

On March 24, 2020, the San Francisco Office of Labor Standards Enforcement (OLSE) issued guidance on changes to enforcement of the city’s Paid Sick Leave Ordinance, as it relates to COVID-19.  One key change is modification of the Ordinance’s verification rule.  Normally, employers are permitted to require documentation for paid sick leave use for absences of more than three days.  This rule is temporarily suspended, and employers are not permitted to require any documentation for the duration of the COVID-19 local health emergency.

Permissible uses of paid sick leave have also been expanded.  Covered employees may now use accrued paid sick leave to cover absences (1) where public health officials require or recommend to quarantine or self-isolate, (2) if the employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s guidelines (such as older workers and those who have a health condition such as heart disease, lung disease, diabetes, kidney disease, or a weakened immune system), (3) when the employee’s place of work closes temporarily in response to official recommendation, (4) to care for a family member who is not sick, but who must quarantine or self-isolate, and (5) to care for a family member whose school, childcare provider, or senior care provider has ceased operations or work temporarily ceases operations in response to official recommendation.  The full guidance is available here.

Additionally, on March 16, 2020, San Francisco enacted “The Workers and Families First Program” (“WFFP”), a plan providing for $10 million in public funding to partially reimburse businesses who provide an additional five days of sick leave pay to workers beyond their existing policies.  All San Francisco businesses are eligible, with up to 20% of funds reserved for small businesses (those with 50 or fewer employees). The City will contribute up to one week (40 hours) at $15.59 per hour (based on the San Francisco minimum wage) per employee, or $623 per employee. The employer must then pay the difference between the minimum wage and an employee’s full hourly wage.

According to the Mayor’s office, the Program is available only if an employee has exhausted his or her available sick leave, and has exhausted or is not eligible for federal or state supplemental sick leave.

Employees qualify for paid sick leave under the WFFP if they are:

  • Sick,
  • Self-quarantined to prevent spread,
  • Caring for a sick family member,
  • Home because of a temporary work closure in response to a public official’s recommendation, or
  • Caring for a child who is home because of school/daycare closures in response to a public official’s recommendation.

While the FFCRA also applies to employees who are sick, quarantined, caring for a sick family member, or caring for a child whose school or child care provider has closed, the WFFP goes further by providing benefits for employees affected by temporary work closures.  Thus, it appears that an employee eligible for sick leave benefits under the FFCRA whose workplace subsequently closes will be eligible for benefits under both programs.

If an employer wishes to utilize the Program, it can apply at here.

Emeryville

Like San Francisco, Emeryville has modified its paid sick leave law to expand the permissible uses of paid sick leave during the COVID-19 pandemic.  These uses include (1) where public health officials require or recommend to quarantine or self-isolate, (2) if the employee falls within the definition of a “vulnerable population” under California state guidance, (3) when the employee’s place of work closes temporarily in response to official recommendation, (4) to care for a family member who is not sick, but who must quarantine or self-isolate, and (5) to care for a family member whose school, childcare provider, or senior care provider has ceased operations.  The full guidance is available here.

Oakland

While Oakland has not officially changed any rules, it has released an official notice confirming the requirements of its paid sick leave law, and providing links to state unemployment and public health websites.

San Diego, Santa Monica, and Berkeley

Like Oakland, these cities have not modified their paid sick leave laws which provide benefits greater than California state requirements.  Employers with employees in these cities should continue complying with local paid sick leave requirements and be on the lookout for any changes.

San Jose

Last week, the San Jose City Council voted to proceed with Mayor Sam Licardo’s proposal to enact a citywide paid sick leave ordinance, which, like the Los Angeles supplemental ordinance, will apply to employees not covered by the FFCRA.  The measure would cover both large employers (those with over 500 employees), and potentially, employers with 50 or fewer employees who qualify for an exemption.  The mayor’s proposal would immediately give qualifying employees 40 hours of paid sick leave, as well as an additional hour of sick leave for every two hours worked, up to a cap of 80 hours.  The final vote on this measure is expected on April 7.

Fresno County

Another source for employer requirements relating to the COVID-19 pandemic are city and county health departments.  The majority of the orders from these sources have general applicability, but employers need to be mindful of obligations imposed specifically on them.  For example, starting on March 26, 2020, the Fresno County Department of Public Health requires that all employers screen their employees on a daily basis for febrile respiratory illness.  Employers must also exclude from the workplace for seven days any employees who report symptoms of febrile respiratory illness.  They must also direct employees excluded from work to isolate at home and to notify all close contacts to quarantine themselves for 14 days from the last contact with the employee.   The Fresno County Department of Public Health has also confirmed that violations of its quarantine orders are punishable as misdemeanors.  The referenced orders are here and here.

SHLC attorneys are available to be retained for private consultation and advice.  You can also find information on other COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://www.suttonhague.com/coronavirus/.  For a schedule of our upcoming webinars, visit https://www.suttonhague.com/events-2/.  We also have downloadable webinars on this and related topics at our Calnevalaw.com website.  Regarding any tax issues, including payroll taxes, employers are strongly advised to consult with a qualified tax CPA.

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