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San Francisco and San Jose Require Additional COVID-19 Paid Leave for Employees

April 29, 2020

Following Los Angeles’s lead, San Francisco and San Jose have enacted ordinances requiring certain businesses to provide additional paid leave benefits to employees for coronavirus (COVID-19)-related reasons. These benefits differ from one another and the federal Families First Coronavirus Response Act (FFCRA) in several important ways.

San Francisco Public Health Emergency Leave Ordinance

San Francisco’s Public Health Emergency (PHE) Leave ordinance provides paid leave to San Francisco employees for reasons related to COVID-19. The ordinance, in effect as of April 17, 2020, expires on June 17, 2020, unless reenacted, or upon termination of the San Francisco mayor’s declaration of a public health emergency, whichever occurs first. Unlike the FFCRA and the San Jose ordinance, there are no caps on how much the employer must pay per day, so that the employee is entitled to be paid their regular rate of pay. Also unlike the San Jose ordinance, it is not limited to employees who have to leave home to do essential work.

To which employers does this ordinance apply?

Employers:

  • With 500 or more employees nationwide;
  • With one or more eligible employees; and
  • That are not covered by the FFCRA.

The FAQs state that the ordinance covers businesses that have temporarily closed or suspended operations.

Who is eligible for this leave?

Any employee, including a part-time and temporary employee or an undocumented employee (but not independent contractors), regardless of seniority, who:

  • Works for an employer within San Francisco’s geographic boundaries, if the employee performs 56 or more hours of work in San Francisco within a calendar year. This includes employees that performed work in San Francisco prior to February 25, 2020 and subsequently switched those work hours to telework outside of San Francisco. It does not include employees that did not perform work in San Francisco prior to February 25, 2020 and subsequently switched work hours to telework in San Francisco.
  • Is unable to work or telework for one 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. This includes employees who are members of a “vulnerable population” and who are unable to work or telework due to a state or local order recommending or requiring additional restrictions for vulnerable or high-risk populations. Vulnerable populations include people who (1) are 60 years old and older, (2) have certain health conditions such as heart disease, lung disease, diabetes, kidney disease, and weakened immune systems, or (3) are pregnant or were pregnant in the last two weeks.
    • The employee has been advised by a healthcare provider to self-quarantine.
    • The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.
    • The employee is caring for a family member who falls under any of the above three categories.
    • 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 PHE.
    • The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the Federal Emergency Paid Sick Leave Act, by the US Secretary of Health and Human Services.

Who is not eligible for this leave?

  • Employees covered by a bona fide collective bargaining agreement that expressly, clearly, and unambiguously waives the right to PHE leave.
  • Former employees.
  • Employees of private employers at San Francisco International Airport.
  • Employees that did not perform work in San Francisco prior to February 25, 2020 and subsequently switched to teleworking in San Francisco.
  • Employers may choose to limit healthcare providers or emergency responders’ ability to use PHE leave, but such employees are entitled to take leave if they are unable to work or telework due to either of the following:
    • The employee has been advised by a healthcare provider to self-quarantine.
    • The employee is experiencing symptoms associated with COVID-19, seeking a medical diagnosis, and does not meet the CDC guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.

How much leave does an employee receive?

  • 80 hours for employees who were full-time (40 hour per week) employees as of February 25, 2020. The FAQs also describe the number of hours available for part-time employees and employees hired after February 25, 2020.
  • This PHE leave is an addition to sick leave under the San Francisco Paid Sick Leave ordinance. However, an employer’s obligation to provide PHE leave is reduced for every hour an employer allowed an employee to take paid leave or paid time off consistent with the requirements of the ordinance, not including previously accrued hours or hours accrued under the San Francisco Paid Sick Leave Ordinance, on or after February 25, 2020, for any reason permitted by the ordinance.
  • Employers may also offset this leave requirement with any paid leave provided under the California Supplemental Paid Sick Leave Executive Order.

What must employers do?

  • Distribute the notice published by the San Francisco Office of Labor Standards and Enforcement (OLSE) to any applicable employees. The notice must be provided in English, Spanish, and Chinese and any language spoken by at least 5% of the employees who are, or prior to COVID-19 were, at the workplace.
  • If the employer is already required to provide written notice to its employees of accrued and available California paid sick leave, the employer should, to the extent feasible, also provide written notice of PHE leave to employees in the same manner. If the employer chooses to provide unlimited PHE leave, the employer may indicate on the wage statement that the leave is “unlimited.”
  • Retain PHE leave records in the same manner as employers retain records under San Francisco’s existing paid sick leave law.

Prohibited Actions

Employers cannot:

  • Require employees to use other accrued paid time off before they use PHE leave.
  • Require employees to provide substantiating documentation, such as a doctor’s note, in order to obtain PHE leave. However, employers can ask the employee to state their reason for taking PHE leave.
  • Require employees to take PHE leave in increments greater than one hour.
  • Reduce other employee benefits, discharge, threaten to discharge, demote, suspend, or in any manner discriminate or take adverse action against any person in retaliation for exercising rights protected under this emergency ordinance.
  • Require employees to search for or find a replacement worker to cover the hours during which the employee is on PHE leave.
  • Interfere with, restrain, or deny the exercise of any right protected under the ordinance.
  • Count any PHE leave as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.
  • Provide bonuses or raise employees’ wages in lieu of providing PHE leave.

San Jose COVID-19 Paid Sick Leave Ordinance

San Jose’s COVID-19 Paid Sick Leave Ordinance provides employees who must leave their home to perform essential work an additional two weeks of paid leave if they are unable to work for COVID-19 reasons. San Jose’s ordinance only requires employers to pay employees up to caps that mirror the FFCRA’s requirements. San Jose’s ordinance in effect as of April 8, 2020, for all San Jose employers except for hospital operators, which went into effect on April 21, 2020. The ordinance expires on December 31, 2020.

To which employers does this ordinance apply?

Employers that are:

  • Not covered by the FFCRA’s requirement to provide paid sick leave benefits; and
  • Subject to the San Jose Business License Tax or maintain a facility in San Jose.

Who is eligible for this leave?

Any employee who:

  • Has worked for the employer for at least two hours within the geographic boundaries of San Jose;
  • Has to leave their home to perform “essential work”; and
  • Meets one of the following criteria:
    • 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;
    • The employee is advised by a healthcare provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a healthcare provider;
    • The employee experiences symptoms of COVID-19 and is seeking medical diagnosis; or
    • The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

If an employee takes leave for reasons 1 or 2, the employer is only required to pay the employee their regular rate of pay up to caps of $511 per day and $5,110 in the aggregate. If an employee takes leave for reasons 3 or 4, the employer is only required to pay the employee their regular rate of pay up to caps of $200 per day and $2,000 in the aggregate.

Who is not eligible for this leave?

  • Employees who do not have to leave their home to perform essential work.
  • Furloughed employees or former employees, because they are not required to leave their home to perform essential work.
  • Employees who have worked less than two hours of work within the geographic boundaries of San Jose during the period of their employment relationship.

How much leave does an employee receive?

  • 80 hours for full-time employees. The ordinance and FAQs also describe the number of hours available for part-time employees and part-time employees that have worked for less than six months.
  • Employers who already provided some combination of paid personal leave equal to or greater than the leave required under the ordinance before April 7, 2020. However, San Jose has issued an opinion letter stating that the full amount of paid leave required under the ordinance must be available for use on April 7, 2020. If an employer’s existing paid personal leave policies cover less than the amount of sick leave required under the ordinance, the ordinance applies only to the extent necessary to cover the gap.

What should employers do?

  • Notify applicable employees who may be eligible for paid leave under the ordinance. San Jose has published a template notice to employees.
  • Maintain records of employees’ use of paid leave under the ordinance.

Prohibited Actions

Employers cannot:

  • Require employees to find a replacement as a condition of using sick leave.
  • Retaliate against employees for asserting their right to leave.

Differences Between San Francisco, San Jose, and the FFCRA COVID-19 Paid Sick Leave Laws

  • The FFCRA applies to employers with fewer than 500 employees in the United States. These ordinances apply to employers with 500 or more employees or are otherwise exempt from the FFCRA.
  • Neither San Francisco nor San Jose reimburse employers for this paid leave, whereas employers receive tax credits for FFCRA paid sick leave.
  • San Jose COVID-19 leave only applies to employees who must leave the house to perform essential activities.
  • San Francisco exempts certain unionized employees, but San Jose does not.

CORONAVIRUS COVID-19 TASK FORCE

Given the frequency with which federal, state, and local authorities are taking executive and legislative efforts to address and mitigate the impact of COVID-19, we have formed a multidisciplinary Coronavirus COVID-19 Task Forceto help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

San Francisco
Eric Meckley

Silicon Valley
Alicia Farquhar
Melinda Riechert
Michael Schlemmer