April 20, 2020 San Francisco and San Jose Pass Emergency Paid Sick Leave Laws

San Francisco Enacts Emergency Ordinance Requiring Large Employers To Provide Paid Sick Leave to Employees Who Cannot Work Due to COVID-19

San Francisco is one of several California localities that, prior to the COVID-19 pandemic, required employers to provide paid sick leave to its employees (including temporary and part-time employees). Last month, the San Francisco Office of Labor Standards Enforcement issued guidance regarding the use of San Francisco paid sick leave pursuant to San Francisco’s Paid Sick Leave Ordinance (“PSLO”) during the COVID-19 pandemic. This guidance included relaxing the requirement of a doctor’s note or other documentation for an employee’s use of paid sick leave and providing additional uses for paid sick leave.

Most recently, on Friday, San Francisco enacted an emergency ordinance (“Ordinance”) requiring employers with 500 or more employees to provide up to 80 hours of paid sick leave to eligible employees working in the City and County of San Francisco who are unable to work due to the COVID-19 pandemic.

The Ordinance, titled “Public Health Emergency Leave,” does not apply to employers covered by the federal Families First Coronavirus Response Act (“FFCRA”), or amend existing law under San Francisco’s PSLO. Rather, the Ordinance to is meant to address large employers that are not covered by the FFCRA (which applies to employers with fewer than 500 employees nationally and public agencies).

1. When does the Ordinance go into effect?

The Ordinance is effective immediately.

2. What must employers provide?

Covered employers must offer employees up to 80 hours of “Public Health Emergency Leave” for full-time eligible employees (pro-rated for part-time employees). 

3. Which employers are covered by the new law?

The Ordinance applies to employers with 500 or more employees. While the method for calculating the number of employees is not provided, the Ordinance’s legislative intent—to address the gap in coverage under the FFCRA—suggests the same method as used in the FFCRA applies. Under the FFCRA, the employee count is determined at the time an employee’s leave is taken, and includes all employees in the United States (including part-time and temporary employees, as well as day laborers supplied by a temporary agency).     

Importantly, the Ordinance contains two important exemptions to coverage for employers, as noted below.

4. Which employees qualify for the new paid sick leave benefits?

The Ordinance defines an “employee” as any person (including part-time and temporary workers) who has performed 56 or more hours of work as an employee within the geographic boundaries of the City and County of San Francisco during the 365 days immediately preceding the effective date of the Ordinance. Individuals participating in a “Welfare-to-Work” program, such as CalWORKS and the County Adult Assistance Program (CAAP), are also “employees” for purposes of the Ordinance, if their participation would be considered employment under the Federal Labor Standards Act and Department of Labor Guidelines. 

5. Are there any exemptions to coverage?

The Ordinance contains two exemptions.

Health Care Provider & Emergency Responder Exclusion

Similar to the FFCRA, the Ordinance permits employers to exclude certain health care providers or emergency responders from using the Public Health Emergency Leave. The Ordinance adopts the FFCRA’s broad definition of “health care provider,” which includes anyone employed at a doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. The Ordinance also adopts the FFCRA’s definition of “emergency responder” and includes military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, and public works personnel.

A more detailed explanation of which individuals qualify as “health care providers” and “emergency personnel” under the FFCRA is available on our Summary and Guide to the FFCRA.  

Collective Bargaining Agreements

Employees covered by a collective bargaining agreement may be exempted from all, or any portion, of the Ordinance’s requirements if the collective bargaining agreement is amended to expressly waive the provisions of the Ordinance in clear and unambiguous terms.

6. How much paid sick time are employees entitled to receive?

Employers must provide each covered employee Public Health Emergency Leave in an amount equivalent to what the FFCRA requires for emergency paid sick leave. In other words, full-time employees (those who work at least 40 hours per week) are entitled to 80 hours of Public Health Emergency Leave. Part-time employees (those who work less than 40 hours per week) are entitled to Public Health Emergency Leave up to their average number of hours in a two-week period.

The amount of Public Health Emergency Leave per employee is capped at $511 per day, and $5,110 in the aggregate.

7. When can an employee use Public Health Emergency Leave?

Employees will qualify for Public Health Emergency Leave when they are unable to work (on premise or remotely) for any of the following six reasons:

a.     The employee is subject to a federal, state, or local order to isolate or self-quarantine to prevent the spread of COVID-19. 

This includes employees who are members of a vulnerable population and unable to work due to restrictions in orders issues by the San Francisco Department of Public Health, Governor Newsom, or Bay Area Jurisdictions recommending or requiring additional restrictions for vulnerable populations.

“Vulnerable population” includes employees that are (i) at least 60 years old, (ii) have a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; or (iii) are pregnant or were pregnant in the last two weeks.

b.     The employee is advised by a health care provider to self-quarantine.

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

d.     The employee is caring for a family member who is subject to an order as described in number 1, has been advised as described in number 2, or is experiencing symptoms as described in number 3.

e.     The employee is caring for a family member whose school or place of care has been closed, or whose care provider is unavailable, due to the Public Health Emergency.

f.     The employee is experiencing any other substantially similar condition specified by the San Francisco Health Officer, or under the FFCRA by the U.S. Secretary of Health and Human Services.

Notably, employers cannot require employees to take leave in increments of more than one hour.

9. What documentation can employers require?

Employers may require an employee to identify the basis for requesting Public Health Emergency Leave, but cannot require the disclosure of health information or other documentation (such as a doctor’s note) for the use of the paid leave.

However, employers must still retain records related to Public Health Emergency Leave in the same manner as records under the San Francisco PSLO. At a minimum, records must be kept for four years. 

10. How long must employers provide these new benefits to eligible employees?

The Ordinance remains in effect until 61 days following the enactment, or upon termination of the Public Health Emergency, whichever occurs first. “Public Health Emergency” is defined as the local emergency Mayor London Breed proclaimed on February 25, 2020. 

The Ordinance also notes that it may be reenacted by the Board of Supervisors to extend the period of coverage.

11. Is the 80 hour Public Health Emergency Leave benefit in addition to paid sick leave employers already give employees under state and local law or company policies?

Yes, but the Ordinance includes an offset provision, which allows employers to reduce the required 80 hours of Public Health Emergency Leave benefit for every hour the employer allowed the employee to take COVID-19 related paid sick leave on or after February 25, 2020, for the qualifying reasons specified in the Ordinance.

Additionally, an employee may voluntarily choose to use other accrued paid time off provided by the employer before using Public Health Emergency Leave, but the employer cannot require the employee to do so.

12. Are employees required to give notice to employees about the Public Health Emergency Leave benefit?

Yes. Within seven days of the effective date of the Ordinance, the San Francisco Office of Labor Standards Enforcement (“Agency”) will make available on its website a notice suitable for employers to inform employees of their rights under the Ordinance. Within three days of the Agency’s publication online, employers must provide the notice to employees by either posting it in a conspicuous place at the workplace, sending it to employees via email, posting it on the employer’s web-based platform, or by other means calculated to reach all employees. The notice must be in English, Spanish, Chinese, and any language spoken by at least 5% of the employees who, prior to the Public Health Emergency, were at the workplace or job site.

The Ordinance also imposes an additional requirement for employers that are required under California’s paid sick leave law (i.e., Labor Code section 246(i)) to provide notice to employees regarding paid sick leave available. To the extent feasible, on the same written notice, the employer must also set forth the amount of Public Health Emergency Leave available to the employee under the Ordinance.

San Jose Requires Large and Small Employers Provide Emergency Paid Sick Leave

San Jose has also joined the list of California localities to enact COVID-19-related paid sick leave measures. Mayor Sam Liccardo signed the San Jose COVID-19 Paid Sick Leave Ordinance, which took effect on April 7, 2020.

The San Jose ordinance has some unique features. It defines employers as persons or entities subject to the San Jose Business License Tax (i.e., San Jose’s minimum wage ordinance), who maintain a facility within San Jose, and who are not already required to provide sick leave under the FFCRA. Notably, this definition does not mention employer size and, therefore, potentially covers employers with less than 50 employees who may qualify for the FFCRA’s hardship exemption. Covered employees include persons who are currently employed with the employer, who have worked at least two hours within the geographic boundaries of San Jose, and whose work requires that they leave their residence to perform “Essential Work,” as defined by the Santa Clara Public Health Officer on March 16, 2020. The determination of employee status is made in accordance with California’s newly codified “ABC” test. 

Covered employers must offer employees up to 80 hours of paid sick leave for full-time eligible employees (pro-rated for part-time employees). Employers can use paid sick leave for any of the following purposes:

a.     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;

b.     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;

c.     The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or

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

Unlike the San Francisco Ordinance, the San Jose Ordinance does not include coverage for employees who are providing care for family members other than a minor child. The full text of the San Jose Ordinance can be found here.

What This Means

The COVID-19 situation is dynamic, with new governmental measures at the federal, state, and local level each day. The San Francisco and San Jose ordinances come after Los Angeles enacted a similar public health order requiring employers not covered under the FFCRA to provide additional paid sick leave to its employees working in Los Angeles. Other local jurisdictions in California have similar proposals under consideration.    

Given these developments, larger employers should monitor the legislation in the communities in which they have employees and prepare to meet any new obligations imposed as the pattern has been to make these ordinances effective upon passage.  

AUTHORS
Mary Allain   Fred Plevin

For further information, questions, or assistance regarding paid sick leave benefits, please contact us. PPSC has a dedicated COVID-19 response team and is committed to assisting our valued clients through these challenging and fast-changing times.