PUBLICATIONS

San Francisco and San Jose Pass Emergency Paid Sick Leave Measures

Date   Apr 22, 2020

As discussed in our previous Legal Alerts, on March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (“FFCRA”). Generally, the FFCRA requires that private employers with fewer than 500 employees provide emergency paid sick to the extent that employees are unable to work (or telework) due to certain COVID-19-related circumstances.

Earlier this month, the cities of San Francisco and San Jose, California each passed emergency paid sick leave ordinances meant to address a gap in the FFCRA’s applicability. The San Francisco Public Health Emergency Leave Ordinance (“PHELO”) and San Jose Urgency Ordinance No. 30390 require employers with 500 or more employees to provide emergency paid sick leave similar to the sick leave required by FFCRA for smaller employers. The following chart summarizes the ordinances:

San Francisco PHELO

San Jose Urgency Ordinance No. 30390

Effective Period

Effective immediately, but expires (1) on the 61st day following enactment (i.e., June 17, 2020) unless reenacted or (2) upon termination of the COVID-19 public health emergency declared by the City.

April 7, 2020 to December 31, 2020.

Covered Employers

Employers that are not required to provide leave under the FFCRA (i.e., the employer is a private employer with 500 or more employees nationally).

Employers must meet the following requirements:

(1) The employer is not required to provide leave under the FFCRA (i.e., the employer is a private employer with 500 or more employees nationally).

(2) Businesses and employers that (a) operate in the City of San Jose or directly/indirectly control an employee’s wages and working terms and conditions (b) and are subject to the San Jose Business License Tax.

Covered Employees

A covered employee is defined as a person providing labor or services for remuneration who is an employee under California law (pursuant to AB 5). The definition of “employee” also includes anyone who performs limited work within the boundaries of San Francisco and would be considered an employee under the already existing San Francisco Paid Sick Leave Ordinance.

Employees must meet both requirements below:

(1) Perform at least two hours of work within geographic boundaries of the City of San Jose; and

(2) Leave their place of residence to perform “Essential Work” as described under the Santa Clara County's shelter-in-place order.

*Does not apply to employees who work from home.

*Determination of employees in the construction industry will be made in accordance with California Labor Code section 245.5(a)(2)

Notice Requirements

The San Francisco Office of Labor Standards Enforcement (“OLSE”) has published a notice that covered employers must provide in a manner calculated to reach employees through:

(1) Posting in a conspicuous place at the workplace;

(2) Electronic communication; and/or

(3) Posting in a conspicuous place in an employer’s web based or app-based platform; and

In addition to English, Spanish, and/or Chinese, the notice should also be provided in any language spoken by at least 5% of the employees who are at the workplace or job site.

Employers are encouraged to provide notice. However, Urgency Ordinance No. 30390 is not clear on whether this is a requirement. The City’s Office of Equality Assurance may establish notice requirements.

Circumstances Under Which Leave Can Be Used

A covered employee may use leave under the following circumstances:

(1) The employee is subject to an individual or general Federal, State, or local quarantine or isolation order related to COVID-19, including any employee who is unable to work due to Governor Newsom’s Executive Order N-33-20, the City’s shelter-in-place order, or any succeeding order requiring residents to stay in their homes during the emergency. Also included is any employee who is a member of a “vulnerable population” (i.e., any person who is 60 years of age or older; has heart disease, lung disease, diabetes, kidney disease, or a weakened immune system; or who is pregnant or was pregnant in the last two weeks).

(2) The employee is advised by a health-care provider to self-quarantine.

(3) The employee has experienced symptoms of COVID-19 and sought medical diagnosis.

(4) The employee is caring for a “Family Member” who is subject to an order as described above, has been advised by a health care provider to self-quarantine, or is experiencing symptoms and seeking medical diagnosis.

(5) 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 COVID-19 public health emergency.

* “Family Member” definition: Child, parent, legal guardian or ward, sibling, grandparent, grandchild, spouse, registered domestic partner under state or local law, or designated person (if employee has no spouse or registered domestic partner, the employee may choose one person).

(6) The employee is experiencing any other substantially similar condition specified by the Local Health Officer or by the United States Secretary of Health and Human Services.

A covered employee may use leave under the following circumstances:

(1) The employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19.

(2) The employee is advised by a health-care provider to self-quarantine due to COVID-19.

(3) The employee experiences symptoms of COVID-19 and seeks medical diagnosis.

(4) The employee is caring for someone who is quarantined or isolated due to COVID-19 (see (1) and (2) above).

(5) The employee is caring for a minor child because a school or daycare is closed due to COVID-19 or the childcare provider is unavailable due to COVID-19.

(6) The employee is experiencing any other substantially similar condition specified by the United States Department of Health and Human Services.

Amount of Leave

Full-time employees: 80 hours for full-time employees employed as of February 25, 2020.

Part-time employees: Number of hours equal to the average number of hours over a two-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took leave for any type.

Under the final version of the ordinance, as noted below, PHELO leave may be reduced to the extent an employee was permitted to take paid leave or paid time off for any of the reasons described below under “Eligibility” on or after February 25, 2020.

*Employer cannot require an employee to find a replacement as a condition of using sick leave.

Full-time employees: 80 hours for full-time employees.

Part-time employees employed for six months or more: Number of hours equal to the average number of hours over a two-week period that the employee was scheduled over the six months preceding April 7, 2020.

Part-time employees employed for less than six months: If employee worked for less than six months, the employer may calculate the available leave based on the average hours the employer expected the employee to work at the time of hire.

*Employer cannot require an employee to find a replacement as a condition of using sick leave.

Use Increments

Employers may not require that employees take leave increments of more than one hour.

Urgency Ordinance No. 30390 is silent on this topic.

Leave Available for Immediate Use

PHELO leave is available for immediate use, regardless of how long the employee has been employed. Leave may be taken regardless of whether or when the employee was scheduled to work, provided that the total numbers of hours taken in a week may not exceed the average number of hours over a one-week period that the employee was scheduled over the previous six months ending on February 25, 2020, including hours for which the employee took leave of any type.

Employer must make paid sick leave available immediately as of April 7, 2020.

Rate of Pay/ Other Pay Requirements

Non-exempt employees: Can be paid (1) at their regular rate of pay for the workweek in which the employee uses the leave or (2) by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

Exempt employees: Should be paid the same way the employer calculates wages for other forms of paid leave.

Employer must provide payment for PHELO leave no later than the payday for the next regular payroll period after the leave is taken.

Employees are paid at their regular rate of pay.

Cap on Wage Replacement Benefits

Not applicable.

For employees who take leave under the Urgency Ordinance No. 30390 for their own care, daily wage replacement is capped at $511 a day, up to a maximum benefit of $5,110.

For employees who take leave to care for others, daily wage replacement is capped at $200 a day, up to a maximum benefit of $2,000.

No Carry Over Requirement/ Unused Sick Leave

Employer is not required to provide or pay out unused PHELO leave upon employee’s separation.

Employee is not entitled to carry over sick leave between years and is not entitled, under any circumstances, to be paid for unused sick leave. Unused sick leave ceases to exist after December 31, 2020.

Other Employer Rights

An employer may require employee to follow reasonable notice procedures in order to use this leave, but only when it is foreseeable.

Further, an employer may require an employee to identify the basis for requesting the leave but may not require the disclosure of health information or other documentation (including but not limited to a doctor’s note).

No additional rights stated in Urgency Ordinance No. 30390.

Recordkeeping Rules

To the extent feasible, on the same notice covering already existing paid sick leave, the employer is required to provide the amount of leave that is available to the employee under PHELO. If employer provides unlimited paid time off, the employer may satisfy this requirement by indicating on the notice or the employee’s itemized wage statement “unlimited.”

Employers are required to retain records for paid sick leave taken by employee for a period of four years.

San Jose follows Fair Labor Standards Act (“FLSA”) record keeping requirements.

Employers should maintain and provide the following documentation:

(1) Name of employee requesting leave.

(2) Dates for which leave is requested.

(3) Reason for leave.

(4) A statement from the employee that he or she is unable to work because of the reason.

Employers with PTO Policies/ Exemptions/Offsets

PHELO runs concurrently with emergency paid sick leave under FFCRA. However, PHELO is an additional benefit above and beyond that provided under California and San Francisco paid sick leave laws.

However, if the employer already provided additional paid sick leave since February 25, 2020 for COVID-19 related purposes, any hours (not including previously accrued hours) may be offset against the 80-hour requirement.

Example: If an employer previously gave 10 hours of additional leave for COVID-19 reasons after February 25, 2020, the employer is only obligated to provide 70 hours to the employee.

Employers cannot require employees to use other additional sick leave, PTO, vacation, etc., before allowing use of leave under the PHELO. However, employees can voluntarily choose to use other paid leave before PHELO.

If an employer provides a combination of other paid personal leave that equals leave required under Urgency Ordinance No. 30390, the employee does not need to provide additional leave.

However, if an employer provides paid personal leave that is less than the leave required by the Ordinance, the employer must provide additional paid leave in the amount of the difference between the paid leave already offered and the paid leave required by the ordinance.

Health Care Providers (Exemptions/Limitations)

An employer who employs a health care provider may elect to limit an employee’s use of PHELO leave.

However, at minimum, such employees may use PEHLO leave if they are unable to work (either at employee’s customary place of work or telework) due to either (1) the employee being advised by a health care provider to self-quarantine or (2) the employee (a) experiencing symptoms associated with COVID-19, (b) seeking a medical diagnosis, and (c) not meeting the Centers for Disease Control and Prevention guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.

Employers that operate hospitals will be exempt from the Ordinance if, within two weeks of the effective date, the employer provides its employees with some combination of paid personal leave at least equivalent to the paid sick time required under the Ordinance. If the hospital provides paid personal leave less than that required by the Ordinance, the hospital must comply with the Ordinance.

Anti-Retaliation Provisions

It is unlawful to retaliate in any way for a person exercising rights under PHELO.

It is unlawful to retaliate in any way for a person exercising rights under Urgency Ordinance No. 30390.

Employers with business operations in San Francisco and San Jose should confirm whether they are required to provide emergency paid sick leave under either city’s ordinance. Further, covered employers in San Francisco should ensure that they provide the required notice in a manner calculated to reach their employees.

San Francisco’s OLSE has issued FAQs to address specific employer concerns regarding PHELO. San Jose’s Office of Equality Assurance has done so as well.

If you have any questions regarding this Alert, please contact the authors, Tim Reed, treed@fordharrison.comNoah Woo, nwoo@fordharrison.com, and Ross Boughton, rboughton@fordharrison.com, attorneys in our San Francisco Bay Area office. Of course, you may also contact the FordHarrison attorney with whom you usually work.

FordHarrison is closely monitoring the spread of Coronavirus and associated federal and state legislation and has implemented continuity plans, including the ability to work remotely in a technologically secure environment when necessary, to ensure continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on Coronavirus and workplace-related provisions of the CARES Act, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce or CARES Act attorney, please contact clientservice@fordharrison.com.