Sacramento, Santa Rosa, and the County of San Mateo Throw Their Hats in the Ring with New Supplemental Paid Sick Leave Ordinances

07.24.2020

The City of Sacramento, the City of Santa Rosa, and the County of San Mateo have now joined the ranks of localities in California providing extra paid sick leave for employees who work within their boundaries but do not qualify for the emergency sick leave provided by the federal Families First Coronavirus Response Act (FFCRA).

SACRAMENTO

On June 30, 2020, the Sacramento City Council enacted the Sacramento Worker Protection, Health, and Safety Act (SWPHSA). The SWPHSA became operative on July 15 and sunsets on December 31, 2020.  In addition to granting employees the right to refuse work under certain conditions and requiring employers to implement certain safety practices and protocols, it requires employers to provide supplemental paid sick leave (SPSL).

A.  Who Is Covered?

Employees:  The SWPHSA applies to any person who works within the boundaries of the City of Sacramento for their employer and is an “employee” as defined by California Labor Code section 2750.3.  There is, however, an exemption applicable to employees who are health care providers or emergency responders, as defined by FFCRA regulations (29 C.F.R. § 826.30(c)).

Employers:  The SPSL-related portions of the SWPHSA are limited; they apply only to “employers” with 500 or more employees nationally, who are not already required to provide paid sick leave to employees under the Emergency Paid Sick Leave Act enacted in the FFCRA.

B.  Supplemental Paid Sick Leave Requirements

The SPSL required by Sacramento must be provided in addition to any other paid sick leave, paid time off, or vacation time that an employer currently provides to an employee by statute, policy, or collective bargaining agreement.

1.  Calculation of Supplemental Paid Sick Leave Hours

Full-Time Employees:  A full-time employee is entitled to 80 hours of SPSL.

Part-Time Employees:  Part-time employees are entitled to an amount of SPSL hours equal to the number of hours worked on average over a two-week period.  This number is determined by calculating the number of hours worked by the employee for each week the employee worked during the six months immediately preceding July 15, 2020, multiplied by two.

An employee must be compensated for this SPSL at the employee’s regular rate of pay, but that compensation shall not exceed $511 per day or $5,110 in the aggregate.

For an employee who uses SPSL to care for a family member (i.e., child, grandchild, grandparent, parent, sibling, spouse or domestic partner), the employer may pay two-thirds of the employee’s regular rate of pay, with a maximum employer obligation of $200 per day and an aggregate of $2,000 for the entire benefit.

2.  Reasons Supplemental Paid Sick Leave May Be Used

An employee who is unable to work or telework may use SPSL due to any of the following:

1. The employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19, or is caring for a family member who is quarantined or isolated due to COVID-19.
2. The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised.
3. The employee chooses to take off work because the employee is over the age of 65 years or is considered vulnerable due to a compromised immune system.
4. The employee is off work because the employer or specific work location temporarily ceases operation due to a public health order or recommendation.
5. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
6. The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

 C.  Other Important Information

Sacramento’s law provides an offset for employers that granted additional paid sick leave (beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or collective bargaining agreement) since March 19, 2020 specifically for use for COVID-19-related reasons listed above.  Also, if an employee is entitled to leave pursuant to the Governor’s Executive Order N-51-20, the employer may use those leave hours as a credit against the number of SPSL hours required.

An employer may not require an employee to use other accrued paid sick leave, paid time off, or vacation time before using SPSL. An employer may not require an employee to find a replacement as a condition of using SPSL. An employer may not issue any discipline or attendance points based on a no-fault attendance policy for an employee’s use of SPSL.

If requested by the employer, an employee is required to inform the employer of the basis for requesting SPSL, but a doctor’s note or other documentation cannot be required. An employer may require the employee to follow reasonable notice procedures before providing SPSL, but only when the employee’s need for the SPSL is foreseeable.

Importantly, an employee is not entitled, under any circumstances, to be paid for unused SPSL. Unused SPSL expires after December 31, 2020.

Lastly, the SWPHSA includes a broad anti-retaliation provision, and enforcement provisions in the SWPHSA empower employees to bring a civil action against the employer seeking reinstatement, withheld paid sick leave, other legal or equitable relief, and attorneys’ fees and costs.

SANTA ROSA

On July 7, 2020, the Santa Rosa City Council enacted its Temporary Sick Leave Ordinance (TSLO), which took effect that day as an urgency ordinance. It will remain in effect through December 31, 2020, unless extended by further ordinance.

A.  Who Is Covered?

Employees:  Covered employees include any person employed by a qualifying employer, who has worked at least two (2) hours within the geographic boundaries of the City of Santa Rosa for the employer, and who performs “allowed or essential work” activities as permitted by the Sonoma County Public Health Officer’s orders.  (The TSLO is silent on when these two hours in Santa Rosa can have been worked.)

Employers:  The application of the TSLO is limited; it applies only to employers with 500 or more employees nationally.  There are, however, exclusions: (1) the TSLO does not apply to any government employer; and (2) employees caring for a child are exempted from the TSLO if their employer has less than 50 employees and would qualify for the small employer exemption in the FFCRA.

The TSLO exempts any employer that has – as of July 7, 2020 – already provided its employees with some combination of paid personal leave at least equivalent to the paid sick time required by the TSLO for COVID-related leave reasons.

B.  Supplemental Paid Sick Leave Requirements

1.  Calculation of Supplemental Paid Sick Leave Hours

Full-Time Employees:  A fulltime employee is entitled to eighty (80) hours of paid sick leave.

Part-Time Employees:  A part-time employee is entitled to sick leave hours equal to the number of hours he/she works on average over a two-week period (but the ordinance is silent on how to calculate this two week average).

(Note: An employee who works only part of their hours within Santa Rosa city limits is entitled to paid sick leave hours equal to the number of hours he/she works on average over a two-week period in Santa Rosa, and the TSLO is again silent as to how to calculate this average.)

The employee must be compensated for sick leave time at the employee’s regular rate of pay up to $511 a day not to exceed an aggregate of $5,110.

2.  Reasons Supplemental Paid Sick Leave May Be Used

An employee can use paid sick leave for any of the following purposes:

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 or is caring for someone who is so advised.
3. The employee experiences symptoms of COVID-19 and is seeking medical diagnosis.
4. The employee is caring for someone who is quarantined or isolated, or otherwise unable to receive care due to COVID-19.
5. The employee is caring for a minor child because a school or daycare is closed, or the child care provider is not available due to COVID-19.

C.  Other Important Information

An employer cannot require an employee to find a replacement as a condition of using sick leave under the TSLO.

Unused sick leave under the TSLO expires after December 31, 2020, and an employee is not under any circumstances entitled to be paid for unused TSLO sick leave.

The TSLO includes a broad anti-retaliation provision, and enforcement provisions in the TSLO empower employees to bring a civil action against the employer seeking reinstatement and compensation including back pay and withheld sick leave, as well as attorneys’ fees and costs.

COUNTY OF SAN MATEO

The San Mateo County Board of Supervisors enacted its Emergency Ordinance (EO) To Establish Supplemental Paid Sick Leave (SPSL) For Covid-19 Related Reasons  on July 7, and the paid sick leave obligation in the county's unincorporated areas began on July 8, 2020. The San Mateo County EO will remain in effect through December 31, 2020.

A.  Who Is Covered?

Employees:  “Employee” means an individual, regardless of immigration status, who is or has been required by their employer to perform any work within the geographic boundaries of unincorporated San Mateo County since January 1, 2020. (A food sector worker, as defined in the California Governor’s Executive Order N-51-20, is excluded from the EO.) 

Employers:  San Mateo County’s EO applies only to private employers with 500 or more employees throughout the United States. 

The EO includes express exemptions for employers of any employee requesting SPSL who is a health care provider, an aviation security worker (if granting a requested leave would render the employer unable to meet required staffing levels), or an emergency responder.  Notably, though, the EO provides that, despite the exemption, an emergency responder should be permitted to use SPSL if the employee is unable to work because the employee was ordered by a health care provider to isolate/quarantine or if the employee is experiencing COVID symptoms, is seeking a diagnosis, and does not meet CDC criteria for healthcare professionals to return to work.

The EO authorizes its provisions to be expressly waived in a collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.

B.  Supplemental Paid Sick Leave Requirements

 1.  Calculation of Supplemental Paid Sick Leave Hours

Full-Time Employees:  A full-time employee who is normally scheduled to work forty (40) or more hours per week is entitled to eighty (80) hours of SPSL.

Part-Time Employees:  A part-time employee who is normally scheduled to work fewer than forty (40) hours per week is entitled to SPSL in an amount no greater than the employee’s average number of work hours in a two-week period, calculated over the period of January 1, 2020, through July 7, 2020.

The employee must be compensated for sick leave time at the employee’s regular rate of pay up to $511 a day not to exceed an aggregate of $5,110.

2.  Reasons Supplemental Paid Sick Leave May Be Used

An employer must allow SPSL to be used upon the written request of a qualifying employee if they cannot work or telework for the following reasons:

1. The employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
2. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
3. The employee needs to care for an Individual who is subject to a federal, state, or local quarantine or isolation order related to COVID19, or has been advised by a health care provider to self-quarantine related to COVID-19 or is experiencing COVID 19 symptoms and is seeking a medical diagnosis; or
4. The employee takes time off work because the employee needs to provide care for an individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.

 C.  Other Important Information

An employer is permitted to request information supporting an employee’s request for Supplemental Paid Sick Leave, as provided in the FFCRA and its corresponding regulations.

The EO’s requirements for provision of SPSL are in addition to and independent of any form of leave (e.g., vacation, sick, or personal leaves) to which an employee is ordinarily entitled pursuant to the employer’s policies.  However, the San Mateo County EO provides an offset for employers that provided additional paid leave specifically for COVID-19 related purposes above and beyond an employee’s regular or previously accrued leaves (e.g., sick or personal leaves) between March 17 to June 30, 2020, or provided supplemental leave pursuant to the laws of another jurisdiction requiring the provision of additional paid leave specifically for COVID-19 related purposes at any time.  The EO’s requirement for SPSL is reduced by every hour an employer allowed an employee to take this previously provided qualifying leave.  However, if the rate of pay for the SPSL for this previously provided leave was less than provided for in the EO, the amounts previously provided offset against whatever rates and hours the employee would be entitled to under the EO.

The EO includes broad anti-retaliation provisions, and employees claiming violations of the EO are empowered to bring civil action against their employers, seeking compensation and reinstatement, as well as attorneys’ fees and costs.

EMPLOYERS MUST REMAIN DILIGENT

These new localities are just the newest in the long, but still expanding, list of jurisdictions requiring California employers to provide supplemental paid sick leave for employees who work within their boundaries.  Since the start of the pandemic, we have addressed similar local ordinances enacted in San Francisco and San Jose, the City of Oakland, the City of Long Beach, the City of Los Angeles, and the County of Los Angeles.  The Governor of California also issued a State-wide Executive Order pertaining to sick leave for food sector workers.  

Each of these laws addresses supplemental paid sick leave slightly differently, so employers must pay particular attention to the specifics of the provisions applicable to their employees based upon where these employees work.  Employers should consult their legal counsel as needed to ensure they remain compliant with applicable law.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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