As previously reported, in response to the Families First Coronavirus Response Act (FFCRA), California’s governor and a growing number of California cities have implemented emergency measures to provide COVID-19-related paid sick leave benefits to employees who work for companies with 500 or more employees and who are otherwise excluded from the provisions of the FFCRA. San Francisco and San Jose are two of the latest cities to do so.
San Francisco’s Public Health Emergency Leave
On April 14, 2020, the San Francisco Board of Supervisors passed an amended emergency ordinance to temporarily require private employers with 500 or more employees worldwide to provide up to 80 hours of paid public health emergency leave (PHEL) for employees (including persons whose wages, hours or working conditions are controlled by the employer, such as temporary employees) who perform work within the city and county of San Francisco. The San Francisco Office of Labor Standards Enforcement also issued guidance for implementing the ordinance. The ordinance took effect April 17, 2020, and will expire June 17, 2020, unless subsequently re-enacted, or upon termination of the COVID-19 public health emergency, whichever occurs first. The employer’s obligations under the ordinance may be expressly waived in a bona fide collective bargaining agreement to the extent that the waiver is clear and unambiguous.
PHEL is in addition to any other paid time off provided to employees on or before April 17, 2020. An employer’s obligation to provide PHEL, however, is reduced for every hour an employee has been permitted to take paid leave or paid time off, not including previously accrued hours, on or after Feb. 25, 2020, for COVID-19-related reasons. Importantly, employers are not permitted to change paid time off policies on or after April 17, 2020, except to provide additional paid leave, and may not require, as a condition of taking PHEL, that the employee take PHEL in increments of more than one hour. Employers also cannot force employees to use other accrued paid time off before using PHEL.
Persons who were employed full-time as of Feb. 25, 2020, are entitled to 80 hours of PHEL. Persons employed part-time as of that date are entitled to PHEL in an amount equal to each individual’s average two-week pay during the six months preceding Feb. 25, 2020, including hours for which they took any type of leave. Persons hired after Feb. 25, 2020, are entitled to PHEL in an amount equal to each individual’s average two-week pay between the date of hire and the date upon which the leave is taken. Employers must compensate employees in the same manner that paid sick leave is currently calculated under San Francisco’s Paid Sick Leave Ordinance. Such compensation is owed no later than the payday for the next regular payroll pay period after the PHEL is taken.
Under the ordinance, employers may implement reasonable notice procedures for use of PHEL, but may not require the disclosure of health information or other documentation (e.g., a doctor’s note) for COVID-19-related absences. If an employee is unable to work (or telework), the employee is entitled to use PHEL for any of the following reasons:
- The employee is subject to an individual or general federal, state or local quarantine or isolation order related to COVID-19, including Gov. Gavin Newsom’s March 19, 2020, executive order requiring all Californians to shelter in place; has been advised by a health care provider to self-quarantine; is experiencing symptoms associated with COVID-19 and is seeking a medical diagnosis; or is a member of the “vulnerable” population and unable to work due to recommendations or by any state or local order recommending or requiring additional restrictions for vulnerable or high-risk populations.
- The employee is caring for a family member who is subject to an individual or general federal, state or local quarantine order related to COVID-19; or is experiencing symptoms associated with COVID-19 and is seeking a medical diagnosis.
- The employee is caring for a family member because the school or place of care for the family member has been closed, or the care provider of such family member is unavailable due to the COVID-19 public health emergency.
- The employee is experiencing any other substantially similar condition specified by the local health officer or the U.S. secretary of health and human services.
Employers, however, may elect to provide PHEL to health care providers and emergency responders only for the following reasons: (i) they have been advised by a health care provider to self-quarantine; or (ii) they are experiencing symptoms associated with COVID-19, are seeking a medical diagnosis and do not meet the Centers for Disease Control and Prevention’s criteria for returning to work for health care personnel with confirmed or suspected cases of COVID-19.
The ordinance requires notice to employees of the amount of available PHEL, imposes new record retention requirements on employers and expressly prohibits employers from retaliating against employees for exercising their rights under the ordinance. If an employer takes adverse employment action against an employee within 90 days of the employee exercising his or her rights under the ordinance, there is a rebuttable presumption that such adverse action was taken for a retaliatory reason.
San Jose’s Paid Sick Leave Ordinance
On April 7, 2020, San Jose adopted its own COVID-19 Paid Sick Leave Ordinance. It expires Dec. 31, 2020. As of the date the ordinance was passed, employers that are not otherwise required to provide paid sick leave benefits under the FFCRA, in whole or in part, must provide paid sick leave to employees who have worked at least two hours within the city and who perform “essential work,” which is a work activity or service, as defined in the initial shelter-in-place mandate issued by the Santa Clara County public health officer on March 16, 2020. The ordinance does not afford paid sick leave to employees who “can work from home.”
Under the ordinance, employees may use paid sick leave for the following purposes:
- The employee is subject to quarantine or isolation by a 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 has been advised by a health care provider to self-quarantine due to COVID-19, or is caring for someone who has been 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 day care is closed due to COVID-19.
Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are entitled to paid sick leave equal to the number of hours they individually work on average over a two-week period. For such part-time employees, the employer must use the average number of hours the employee worked per day during the six months preceding April 7, 2020. If the employee worked less than six months as of April 7, 2020, the employer must calculate the amount of sick leave based on the average number of hours the employer expected the employee to work at the time of hire.
Sick leave must be compensated at an employee’s regular rate of pay up to $511 per day and $5,110 in the aggregate. If an employee needs to use sick leave to care for another person, the employee is entitled to be paid only two-thirds of his or her regular rate of pay up to $200 per day and $2,000 in the aggregate. Paid sick leave hours do not carry over from year to year and cannot be used after Dec. 31, 2020. Employees are not entitled to be paid for any unused sick leave.
Employers are exempt from the ordinance if they already provide, as of April 7, 2020, “some combination of paid personal leave” that is at least equivalent to the paid sick leave required under the ordinance. To the extent an employer provides paid personal leave that is less than the paid sick leave required under the ordinance, the employer is still entitled to an offset. Employers that operate hospitals are entirely or partially exempt from the ordinance if, by April 21, 2020, they have implemented policies that provide “some combination of paid personal leave” to their employees.
San Jose’s Office of Equality Assurance is authorized to implement and enforce the ordinance and may establish reasonable requirements to inform employees of their rights under it, including requiring employers to post appropriate notices.
If you have questions about how these measures may impact your business, please contact any of the McGuireWoods team members listed below, or any other member in the labor and employment group.
McGuireWoods has established a COVID-19 Response Team to help clients navigate urgent and evolving legal and business issues arising from the novel coronavirus pandemic. Lawyers in the firm’s 21 offices are ready to assist quickly on questions involving health care, labor and employment, education, real estate and more. For assistance, contact a team member or email [email protected].