San Francisco and San Jose Enact Emergency Paid Sick Leave Ordinances

In response to the ongoing Coronavirus pandemic, on April 7, 2020, San Francisco and San Jose issued emergency orders providing supplemental paid sick leave to certain employees working within their cities. Below are the key points Bay Area employers need to know.

SAN JOSE

Coverage

The San Jose Emergency Paid Leave Ordinance applies to all employers that are not required – in whole or in part – to provide paid sick leave benefits to employees under the Families First Coronavirus Response Act (“FFCRA”). In particular, this includes expanding the paid leave benefits under the FFCRA to businesses with more than 500 employees. The benefit is available, however, only for employees who leave their residence to perform essential work.

“Employee” under the Ordinance refers to a person employed by a covered employer and who has worked at least two hours within the geographic boundaries of the City of San Jose. The paid sick leave is immediately available regardless of the length of employment.

Amount of Supplemental Paid Sick Leave

Full-time employees: 80 hours of sick leave for full-time employees.

Part-time employees: average number of hours an employee works over a two-week period.

For employees who work varying schedules from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked, the employee is entitled to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type. If the employee did not work over such period, the employee is entitled to the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

Permissible Reasons for Using Paid Sick Leave

Covered employees leaving their residences to perform essential work 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, or is caring for someone 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 someone who is so advised by a health-care provider;
  3. The Employee experiences symptoms of COVID-19 and is seeking medical diagnosis; or
  4. The Employee is caring for a minor child because a school or daycare is closed due to COVID-19.

The Ordinance prohibits employers from requiring an employee to find a replacement as a condition of using paid leave under the Ordinance.

Exemptions

The Ordinance does provide paid sick leave for employees who can work from home.

In addition, the Ordinance does not apply to any Employer that provides its employees with some combination of paid personal leave at least equivalent to the paid sick time required by the Ordinance. For employers that provide paid leave, but in a lesser amount, they must make up the difference between the leave they provide and the leave required by the Ordinance.

Expiration

The Ordinance is in effect through December 31, 2020.

Enforcement

The San Jose Office of Equality Assurance (OEA) will implement and enforce the ordinance in the same manner it enforces the San Jose Minimum Wage Ordinance. The OEA can also establish reasonable requirements to inform employees of their rights, including requiring employers to post notices.

San Francisco

Coverage

The San Francisco Emergency Paid Leave Ordinance states it is intended to address the “coverage gap” created by the FFCRA by extending paid leave to employees in San Francisco who are employed by businesses with 500 or more employees worldwide. Notably, unlike the San Jose Ordinance, the San Francisco Ordinance does not limit the emergency paid leave benefits only to employees leaving their residences to perform essential work. Further, “employee” refers to any person, including part-time and temporary workers, who performs work as an employee within the geographic boundaries of the city.

Permissible Reasons for Using Supplemental Paid Sick Leave

Employees may use leave under this Ordinance to the extent the employee is unable to work (or telework) due to any of the following reasons:

  1. The Employee is subject to an individual or general Federal, State, or local quarantine or isolation order related to COVID-19. This includes employees who are unable to work due to Governor Newsom’s Executive Order N-33-20, the shelter-in-place Order No. C19-07b or any succeeding order requiring residents to stay in their homes during the emergency, or shelter-in-place orders issued in other Bay Area jurisdictions.
  2. The Employee has been advised by a health care provider to self-quarantine;
  3. The Employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis;
  4. Employee is caring for an individual subject to or advised to quarantine or isolate, or is experiencing symptoms associated with COVID-19;
  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 Public Health Emergency;
  6. Employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Amount of Paid Sick Leave

Full-time employees: 80 hours of sick leave for full-time employees.

Part-time employees: average number of hours an employee works over a two-week period.

Similar to the requirements under the FFCRA and under the San Jose Ordinance, for employees who work varying schedules from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked, the employee is entitled to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type.

Employees may voluntarily choose to use other accrued paid time off provided by their employer before the employee uses leave under the Ordinance, but an employer may not require the employee to do so.

Exemption

The Ordinance does not apply to employers already covered under the FFCRA. Additionally, while technically not an exemption, the Ordinance states that if, since February 25, 2020, employers already have provided additional paid leave for the qualifying reasons articulated in the Ordinance, any hours provided can be offset against the leave required by the Ordinance.

Expiration

The San Francisco Emergency Ordinance will expire on the 61st day following enactment, or upon the termination of the Public Health Emergency, whichever occurs first.

Enforcement

The San Francisco Office of Labor Standards Enforcement will create a notice regarding this emergency leave ordinance, which covered employers must post and provide to employees.

Los Angeles also recently issued an emergency order providing supplemental paid sick leave to certain employees within the City of Los Angeles. Our previous post summarizing the Los Angeles emergency order is located here. We will continue to monitor any further developments and provide an update once additional guidance on the Order has been issued. Please check Orrick’s COVID-19 resource center for the latest updates.