COVID-19 Response: California Governor and Cities Expand COVID-19 Paid Sick Leave
Los Angeles, California (April 27, 2020) - As part of the federal government’s efforts to address employment concerns relating to COVID-19, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law last month, requiring employers to provide paid time off to their employees for reasons related to the virus. However, the FFCRA specifically excludes employees who work for larger employers with more than 500 employees and provides exemptions for smaller business with fewer than 50 employees, allowing such employers to avoid the burdens imposed by providing additional paid leave during the ongoing pandemic.
In response, California Governor Gavin Newsom and municipal officials in the cities of Los Angeles, San Jose, and San Francisco have developed their own legal measures to address perceived gaps in the federal law and extend emergency paid sick leave to employees who would otherwise be excluded from those benefits.
The Families First Coronavirus Response Act – Emergency Paid Sick Leave Act
The FFCRA, effective April 1, 2020, requires all public entities and private entities with fewer than 500 employees to provide either:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because they are quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay for employees with a bona fide need to care for a quarantined individual, care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition.
Both part-time and full-time employees are eligible if their employment has lasted at least 30 days. However, small businesses with fewer than 50 employees are exempt from the requirement to provide leave due to school closings or child-care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
While the federal law imposes significant burdens on employers to provide additional paid sick leave to their employees in light of the ongoing pandemic, many California officials remain concerned that the federal law fails to protect a significant number of employees, including those employed by larger corporations and those who have not worked for more than 30 days, who may require access to paid leave for reasons relating to COVID-19.
Statewide Supplemental Paid Sick Leave for Food Sector Workers
On April 16, 2020, Governor Newsom signed an executive order extending supplemental emergency paid sick leave to food sector workers, effective immediately. Under the order, food sector workers, including, for example, farmworkers, grocery workers, and delivery drivers, are entitled to 80 hours of COVID-19 Supplemental Paid Sick leave if:
- The worker is full-time; and
- The worker worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the worker took COVID-19 Supplemental Paid Sick Leave.
Workers who do not meet the above criteria may still be entitled to some leave under the following circumstances:
- If the worker has a normal weekly schedule, the worker is entitled to leave equal to the total number of hours the worker is normally scheduled to work over two weeks; or
- If the worker works a variable number of hours, the worker is entitled to leave equal to fourteen times the average number of hours the worker worked each day in the six months preceding the date the worker took COVID-19 Supplemental Paid Sick Leave, or the entire period the worker has worked if fewer than six months.
Such leave is to be paid at the worker’s regular rate of pay for the last pay period, the state minimum wage, or the local minimum wage to which the worker is entitled, whichever is highest, subject to a cap of $511 per day and $5,110 in the aggregate.
Notably, although this supplemental leave is to be provided in addition to any paid sick leave available under Labor Code section 245, a hiring entity may require the worker to use any other paid or unpaid leave, paid time-off, or vacation time provided by the entity before using COVID-19 Supplemental Paid Sick Leave under the order.
Los Angeles Emergency Sick Leave
Los Angeles Mayor Eric Garcetti signed an emergency order on April 7, 2020, which supplements the FFCRA by requiring paid sick leave for companies operating within the city of Los Angeles with either 500 employees in the city or 2,000 nationally. Pursuant to the emergency order, such companies must provide two weeks (up to 80 hours) of paid sick leave based on the employee’s regular rate of pay (capped at $511 per day and $5,110 in the aggregate) for all full-time and part-time employees if:
- The employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee takes time off work because the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- The employee takes time off work because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
- The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation and is unable to secure a reasonable alternative caregiver.
Any paid leave provided since March 4, 2020 for COVID-19 related purposes is to be offset against the 80-hour requirement.
In the event a covered employer fails to provide the required leave, the employee can bring an action against the employer to recover the supplemental paid sick leave unlawfully withheld, back pay, and reinstatement to their position along with any other legal or equitable relief deemed appropriate.
Although this ordinance is clearly a direct response to the FFCRA carve-outs, it does provide several exemptions, including for: new businesses that started or relocated to the City of Los Angeles on or after September 4, 2019 through March 4, 2020; businesses that were forced to closed for two weeks or more due to an emergency COVID-19 order; government agencies; emergency and health services personnel, including hospital workers; and global parcel delivery services. The ordinance further excludes employers with a paid time off policy that provides a minimum of 160 hours of paid leave on an annual basis. Such exemptions attempt to balance the goal of improving access to paid leave with the need for emergency personnel and a desire to limit the financial impact on vulnerable business entities.
San Jose and San Francisco Emergency Sick Leave
San Jose and San Francisco officials have followed suit with their own ordinances. San Francisco’s ordinance, effective April 17, 2020, specifically extends paid sick leave to employees of businesses with 500 or more employees who have worked more than 56 hours in the City or County of San Francisco. Specifically, full-time employees as of February 25, 2020 are entitled to 80 hours of paid sick leave, whereas part-time employees as of February 25, 2020, are entitled to the average number of hours over a two week period that the employee was scheduled over the previous six months.
The city council reasons that such a provision is necessary to ensure that workers for certain essential businesses are able to stay home if exposed to COVID-19 or exhibiting symptoms related to COVID-19. The rationale is that increasing employee access to paid leave during the current pandemic will reduce the likelihood that infected employees will report to work and spread COVID-19 through interactions with fellow employees or members of the public. However, similar to the Los Angeles ordinance, the ordinance exempts employers who employ healthcare providers or emergency responders as defined in 29 C.F.R. 826.30(c) in order to address the need for emergency personnel during the ongoing health crisis.
San Jose’s ordinance, effective April 7, 2020, requires all employers who are not required to provide paid sick leave benefits under the FFCRA sick leave requirements to provide 80 hours of paid sick leave to all full-time employees and paid sick leave equaling the number of hours the employee works on average over a two week period for all part-time employees. Such leave is to be paid at the employee’s regular rate of pay (up to $511 a day and $5,110 in the aggregate) or two-thirds their regular rate of pay (up to $200 a day and $2,000 in the aggregate) if the reason for the leave is to care for another person. Employees are eligible for paid sick leave if they have worked at least two hours in the City of San Jose and if:
- 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 health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care 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.
Additionally, the San Jose ordinance is limited to only those workers who are required to leave their residence to perform “essential work,” as defined by the Santa Clara County Public Health Officer, and does not cover employees who are able to work from home. Finally, the ordinance exempts all employers whose leave policies are “at least equivalent” to the provisions of the San Jose Ordinance on the date of enactment. Employers whose policies are less than equivalent are only required to remedy the deficiency.
These changes in the law governing paid sick leave impose additional short-term burdens on many California employers, with the primary goal of limiting the public’s exposure to COVID-19 by ensuring access to paid leave opportunities above and beyond those required by federal law. For more information about how these ordinances apply in specific situations, contact the author or editors of this alert, or visit our COVID-19 Response Resource Center to find an attorney in your area.
Zachary Tucker, Associate
Peter T. Shapiro, Partner
Ashleigh Reif Kasper, Partner