California Cities Require Employers to Provide COVID-19 Sick Leave

[co-authors: Kristalyn Lee, Mark Payne]*

Three California cities — Los Angeles, San Francisco and San Jose — have recently enacted paid sick leave laws in response to the COVID-19 pandemic. These laws are meant to fill the gaps left by the Families First Coronavirus Response Act (FFCRA). While the laws have the same goal, they differ in many aspects. The guidance set forth below will help employers understand which, if any, of the laws apply to them and how to administer them.

Key Similarities

• All three laws apply to employers with 500 or more employees.

• All three laws provide for up to 80 hours of paid sick leave.

• All three laws allow the paid sick leave to be used if an employee is caring for a minor child whose school or daycare is closed due to COVID-19.

Key Differences

• Each law has different employee eligibility requirements, ranging from performing any work in the applicable city to performing a minimum of 56 hours of work in the city.

• Each law has varying caps, from no cap to a cap of $511 per day and $5,100 in the aggregate.

• Each law has different standards for eligibility.

• Each law has different exemptions.

• Each law has different requirements governing the type of information that an employer may or may not require prior to or as a condition of granting leave.

• Each law has different notice or posting requirements.

• Each law sets forth different penalties for potential violations or retaliation.

• Each law has different qualifications for the ability to offset an employer’s obligation to provide supplemental paid sick leave if the employer previously provided paid leave for COVID-19 related purposes prior to the law’s enactment.

Detailed explanations of the key areas of each city’s law are below.

The City of Los Angeles Supplemental Paid Sick Leave Due to Covid-19 Act (LASPSL)

Effective Date: April 7, 2020.

Employer Coverage: The LASPSL applies to employers that have either (1) 500 or more employees within the city of Los Angeles or (2) 2,000 or more employees within the United States.

Employee Eligibility: Employees are eligible for the LASPSL if they (1) were employed from February 3, 2020 to March 4, 2020 by the employer; (2) have performed any work within the city of Los Angeles (not constrained by the February 3 to March 4 time period); and (3) are unable to work or telework for a covered reason.

The eligibility requirement of performing any work within the city of Los Angeles includes telework, and covers both employees who normally work at a location outside of the city but are telecommuting from a home inside the city and employees who normally work at a location inside the city but are telecommuting from a home outside the city.

Amount of Leave: Up to 80 hours of paid sick leave, with a cap of $511 per day and $5,110 in the aggregate. The maximum amount of paid sick leave is prorated for employees who work fewer than 40 hours per week.

Permitted Use of Leave:

• The employee needs time off because a public health official or health provider has required or recommended the employee isolate or self-quarantine to prevent the spread of COVID-19.

• The employee takes time off because he or she is at least 65 years old or has a health condition that puts him or her at risk.

• The employee needs to care for a family member who is not sick, but for whom a public health official or health care provider has required or recommended self-quarantine.

• The employee needs to provide care to a family member whose senior care provider, school or childcare provider is closed.

Interaction With Other Leaves:

• The LASPSL is in addition to sick leave provided under the existing Los Angeles City Paid Sick Leave Law (which provides up to 48 hours of paid sick leave).

• If an employer allowed an employee to take paid leave for a covered reason after March 4, 2020, and the leave was in addition to accrued, unused leave and paid at the employee’s average hourly rate, then the employer may reduce the 80 hours of LASPSL by a corresponding amount. For example, if an employer gave an employee 40 hours of paid time off (which did not deplete existing accrued time-off banks) during the week of April 6 to care for a child whose school was closed, the employee is entitled only to another 40 hours under the LASPSL.

Exemptions:

The following employers do not have to provide LASPSL:

• Employers that have a paid leave/PTO policy that provides at least 160 hours of paid leave per year. If employers provide 160 hours of paid leave only to some employees, they are exempt from providing LASPSL only as to those employees.

• Employers that have been closed/have not operated for at least 14 days on or after March 4, 2020 due to a city official’s emergency COVID-19 order.

• Employers with any number of employees who are either emergency personnel or health care workers.

• Employers that provide global parcel delivery services.

• A new business that opened in the city or moved to the city from outside the city between September 4, 2019 and March 4, 2020.

Notice/Posting Requirements: There is no posting requirement.

The San Francisco Public Health Emergency Leave Ordinance (SFPHELO)

Effective Date: April 17, 2020.

Employer Coverage: The SFPHELO applies to employers with 500 or more employees worldwide. Employers that are covered by the FFCRA are not covered by the SFPHELO.

Employee Eligibility: Employees are eligible for SFPHELO if they perform 56 or more hours of work within the city of San Francisco within a calendar year. The 56 hours requirement includes hours worked from an employee’s home in the city.

Amount of Leave: Up to 80 hours of paid sick leave, prorated for part-time employees.

Permitted Use of Leave:

• The employee is subject to an individual or general federal, state or local quarantine or isolation order related to COVID-19. This includes:

  1. an employee who is unable to work or telework due to Governor Newsom’s Executive Order N-33-20, the shelter-in-place Order, No. C19-07b, or any succeeding order requiring residents to stay home during the emergency; and

  2. an employee who is a member of a “vulnerable population” who is unable to work or telework due to recommendations in Order No. C19-05, C19-07b, or any order issued by Governor Newsom or Bay Area jurisdictions restricting vulnerable or high-risk populations. Vulnerable populations include people who are 60 years old and older, people with certain health conditions, and people who are pregnant or were pregnant in the last two weeks.

• The employee has been advised by a health care provider to self-quarantine.

• The employee is experiencing symptoms associated with COVID-19 and is seeking a medical diagnosis.

• The employee is caring for a family member who is subject to an order as described in (1) above, has been advised not to work as described in (2) above, or is experiencing symptoms as described in (3) above.

• The employee is caring for a family member if the school or place of care of the family member has been closed, or the care provider of such family member is unavailable, due to the pandemic.

• The employee is experiencing any other substantially similar condition specified by a local health officer.

Interaction With Other Leaves:

• The SFPHELO is in addition to existing paid time off and sick leave available to employees (including under the existing San Francisco Paid Sick Leave, which provides up to 72 hours of paid sick leave).

• If an employer allowed an employee to take paid leave for a covered reason after February 25, 2020 and the leave was in addition to accrued, unused leave, then the employer may reduce the 80 hours of SFPHELO by a corresponding amount. For example, if an employer gave an employee 40 hours of paid time off (which did not deplete existing accrued time-off banks) during the week of April 6 to care for a child whose school was closed, the employee is entitled only to another 40 hours under the SFPHELO.

Notice/Posting Requirements: Employers must post a notice in a conspicuous place in the workplace, send the notice to employees via email, and/or post the notice in a conspicuous place in the employer’s web-based or app-based platform. The notice must be provided in English, Spanish, Chinese and any language spoken by at least 5 percent of the employees. The notices are available here.

Exemptions/Limitations:

• Employers can limit the reasons for which employees who are health care providers or emergency responders can take leave to (1) if the employee has been advised by a health care provider to self-quarantine or (2) if the employee is experiencing symptoms associated with COVID-19, seeking a medical diagnosis, and does not meet the Centers for Disease Control and Prevention’s guidance for criteria to return to work for health care personnel with confirmed or suspected COVID-19.

The San Jose COVID-19 Paid Sick Leave Ordinance (SJCPSLO)

Effective Date: April 7, 2020.

Employer Coverage: The SJCPSLO applies to employers that (1) are not subject to the FFCRA’s emergency paid sick leave requirements and (2) are subject to the San Jose Business License Tax or maintain a facility within the city of San Jose.

Employee Eligibility: Employees are eligible for SJCPSLO if (1) they have worked for an employer for at least two hours within the city of San Jose and (2) they leave their residence to perform essential work for the employer.

Amount of Leave: Up to 80 hours of paid sick leave, paid at the employee’s regular rate. The maximum amount of paid sick leave is prorated for part-time employees. Sick leave taken for the employee’s own care may be capped at $511 per day, and $5,110 in the aggregate. Sick leave taken to care for someone else can be paid at two-thirds the employee’s regular rate, capped at $200 per day and $2,000 in the aggregate.

Permitted Use of Leave:

• The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19 or is caring for someone who is quarantined or isolated due to COVID-19.

• The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health care provider.

• The employee experiences symptoms of COVID-19 and is seeking medical diagnosis.

• The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Interaction With Other Leaves:

• The SJCPSLO is in addition to existing paid time off and sick leave available to employees.

• If, on or after April 7, 2020, an employer provided paid personal leave (in addition to existing, accrued leave) at least equivalent to what an employee would be entitled to under the SJCPSLO, the employer does not need to provide additional leave under the SJCPSLO. If the employer provided paid personal leave less than what is required under the SJCPSLO, the employer must provide the balance of the leave.

Exemptions: Employers that operate a hospital are exempt from providing paid sick leave under the SJCPSLO if, by April 21, 2020, the employer provided employees with paid personal leave at least equivalent to the leave required under the SJCPSLO.

Notice/Posting Requirements: Employers must provide a notice to employees, which is available here. The ordinance does not specify how the notice must be posted or distributed; however, best practice is to post the notice in a conspicuous place in the workplace, send the notice to employees via email, and/or post the notice in a conspicuous place in the employer’s web-based or app-based platform.

* Troutman Sanders