In response to COVID-19, California cities have begun to implement emergency paid sick leave ordinances to support local workers. These local ordinances add another layer of complexity for businesses navigating the rapidly changing rules related to COVID-19. Details of the San Francisco, San Jose, and Oakland emergency sick leave ordinances are below.

Our blog on the ordinance passed by the Los Angeles City Council on March 27, 2020 can be found here, and our blog on Mayor Garcetti's emergency order expanding that paid sick leave on April 7, 2020 can be found here.

San Francisco

On April 7, 2020, the San Francisco Board of Supervisors unanimously approved an emergency ordinance requiring businesses with 500 or more employees to provide an additional two weeks of paid sick leave for employees to use during the COVID-19 public health emergency. The ordinance is designed to apply to businesses too large to be subject to the federal Families First Coronavirus Response Act (FFCRA), requiring these larger employers to provide the same sort of emergency sick leave smaller employers are obligated to provide. Our prior blog on the FFCRA can be found here.

The San Francisco ordinance is currently awaiting mayoral approval. A draft of the ordinance is available here.

The emergency leave would be available immediately upon enactment of the ordinance (likely, the signature by the Mayor), and expire 61 days later or when the public health emergency ends, whichever is sooner. The emergency leave would be available to full-time, part-time, temporary, and seasonal employees if they have performed 56 or more hours of work as an employee in the City within the 365 days before the effective date of the ordinance.

Full-time employees are entitled to 80 hours of emergency leave. Part-time employees are entitled to the number of hours normally worked in a two-week period, based on the average of hours worked during the prior six months.

The emergency leave is available for immediate use “regardless of whether or when the employee is scheduled to work.” The emergency leave must be in addition to the employer’s existing paid leave policies. However, covered employers that previously provided additional voluntary leave in response to COVID-19 may count that for purposes of complying with the ordinance. Employees may elect to use this emergency leave before using other accrued paid time off. Employers are not required to provide emergency leave after an employee is separated from employment.

The emergency leave could be used if the employee is unable to work because:

• The employee is subject to a quarantine or isolation order (including the existing shelter-in-place orders and their heightened restrictions on vulnerable populations);
• The employee has been advised to self-quarantine by a health care provider;
• The employee has COVID-19 symptoms and is seeking a diagnosis;
• The employee is caring for a family member who is subject to a quarantine or isolation order, is self-quarantining, or has COVID-19 symptoms;
• The employee is caring for a family member whose school, place of care, or care provider is unavailable due to the public health emergency; or
• The employee is experiencing a substantially similar condition.

Covered employers cannot require that leave be in increments of more than one hour, cannot require a doctor’s note, cannot reduce their paid time off policies on or after the effective date of the ordinance, and cannot require that employees find replacement workers to cover their leave.

The emergency leave can be waived by an employer through express language in a collective bargaining agreement. Healthcare providers and emergency responder employers can exclude employees from the ordinance; however, the Board of Supervisors has indicated they will consider a similar emergency leave ordinance for those employers the week of April 13, 2020.

The Office of Labor Standards Enforcement will create a notice regarding the emergency leave, which covered employers must provide to employees.

San Jose

On April 7, 2020, the San Jose City Council passed its version of an emergency sick leave ordinance in response to the COVID-19 pandemic. A draft of the ordinance, that does not reflect an amendment made during the City Council meeting, is available here.

The San Jose ordinance is effective from April 7, 2020, through December 31, 2020. Notably, while the San Francisco ordinance applies to business with 500 or more employees, the San Jose ordinance applies to all businesses “that are not required – in whole or in part – to provide paid sick leave benefits under the federal Emergency Paid Sick Leave Act” in the FFCRA. This means that the San Jose ordinance applies not only to employers with 500 or more employees, but also to employers with fewer than 50 employees and employers of healthcare providers or emergency responders who are excluded from, or can opt out of, the FFCRA.

The San Jose emergency leave is available to employees who leave their residence to perform essential work and have worked at least two hours in the City of San Jose. Full time employees are entitled to 80 hours of emergency leave. Part-time employees are entitled to the number of hours normally worked in a two-week period, based on the average of hours worked during the prior six months.

Unlike San Francisco, the San Jose Ordinance is not strictly “supplemental.” Employers whose leave policies are “at least equivalent” to the provisions of the San Jose Ordinance on the date of enactment are exempt from the ordinance. Employers whose policies are less than equivalent are only required to comply with the order “to the extent of such deficiency.” Employers that operate a hospital are given a two-week grace period to comply.

The emergency sick leave is available if:

• The employee is subject to quarantine or isolation due to a federal, state, or local COVID-19 order;
• The employee is quarantined or isolated due to COVID-19;
• The employee is caring for someone quarantined or isolated due to COVID-19;
• The employee is advised by a healthcare provider to self-quarantine;
• The employee experiences COVID-19 symptoms and is seeking a medical diagnosis; or
• The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

When using emergency leave, employees are entitled to their regular rate of pay, up to $511 a day and not to exceed $5,110. However, if the employee is caring for another person, the employee is only entitled to two-thirds of their regular rate of pay, up to $200 a day and not to exceed $2,000.

Employees cannot be required to find a replacement as a condition of using the emergency leave. Unused emergency leave is not paid out on termination.

Oakland

The City of Oakland has not introduced an emergency sick leave ordinance in response to COVID-19. However, city officials have indicated that an ordinance is actively being developed. This advisory will be updated once an Oakland ordinance is effective.

Employer COVID-19 Resources

Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic, and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.

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