Exempt from the FFCRA? Not So Fast – California City Ordinances Provide Protections Beyond the Federal Law
by Jessica Yang
Since the Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020, a number of cities in California have either: (1) clarified employees can use accrued paid sick leave for COVID-19-related reasons or (2) adopted their own ordinances requiring employers exempt from the FFCRA to provide supplemental or additional paid sick leave to employees to use for COVID-19-related reasons. Because many of these ordinances provide protections and leave even beyond that of the FFCRA or are intended to fill the gaps left by the FFCRA, it is imperative for employers to review applicable ordinances and ensure they are compliant. We highlight several of them here.
Preliminarily, it is worth noting that a major difference between the FFCRA and supplemental leave ordinances adopted by various cities is that the ordinances do not contain any similar provisions that would allow covered employers to claim any tax credit for payment of the requisite leave. In other words, these are employer obligations not subject to any type of governmental reimbursement.
The City of Los Angeles has adopted a supplemental paid sick leave ordinance extending emergency paid sick leave to employees to use for COVID-19-related reasons.
What employers are covered? Employers covered by this ordinance are those that have either: (1) 500 or more employees within the City of Los Angeles; or (2) 2,000 or more employees within the United States.
Who is entitled to leave? Employees covered by this ordinance are those who have been employed with the same employer from February 3, 2020 through March 4, 2020, are unable to work or telework, and perform any work within the geographic boundaries of the City for an employer.
How much leave is provided? The supplemental paid sick leave is separate and apart from any regular paid sick leave the employer provided or continues to provide employees, such as regular accrued paid sick leave required by law.
An employee who works at least forty (40) hours per week or is classified as a full-time employee shall receive eighty (80) hours of supplemental paid sick leave, calculated based on employee’s average two-week pay over the period of February 3, 2020 through March 4, 2020. Employees who work less than 40 hours per week and are not classified as full-time employees shall receive supplemental paid sick leave in an amount no greater than the employee’s average two-week pay over the period of February 3, 2020 through March 4, 2020.
An employer’s obligation to provide eighty (80) hours of supplemental paid sick leave shall be reduced for every hour the employer allowed the employee to take paid leave in an amount equal to or greater than the requirements of the ordinance, not including previously accrued hours, on or after March 4, 2020, for any of the reasons described above or in response to the employee’s inability to work due to COVID-19.
Supplemental paid sick leave to an employee will not exceed $511 per day and $5,110 in the aggregate.
For what reasons can employees take the leave? Employees may take the supplemental paid sick leave if the employee is:
- Required by or recommended to isolate or self-quarantine to prevent the spread of COVID-19 by a public health official or healthcare provider requires;
- At least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- Taking time off work because he/she 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
- Taking time off work because he/she 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. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.
Who is exempt from the ordinance? Those exempt from the ordinance include:
- Emergency personnel specified in the April 1, 2020 Los Angeles Safer at Home emergency order (i.e., first responders, emergency management personnel, a related contractor, and others who work for emergency services providers)
- Health care workers, which broadly covers individuals descried in the California Family Rights Act (CFRA), such as physicians and others capable of providing health care services under the FMLA, as well as individuals (including contract workers) working at a licensed health care facility (including hospitals, nursing facilities, and hospices)
- Global parcel delivery services providers
- Government agencies
- Certain new businesses started in or relocated to Los Angeles on or after September 4, 2019 through March 4, 2020 (note: this exemption does not extend to construction businesses or film producers)
- Closed businesses or businesses not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic
- Businesses that already provided at least 14 days of leave
- Employers that have a paid leave or paid time off policy that provides a minimum of one hundred sixty (160) hours of paid leave annually are exempt from any obligation to provide supplemental leave pursuant to this ordinance to employees who receive the more generous paid leave
A collective bargaining agreement (CBA) in place on April 7, 2020 may supersede the order if it contains COVID-19-related sick leave provisions. When the CBA expires or is being renegotiated, the parties can expressly waive the order’s requirements if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. If a CBA is in place on April 7, 2020, but does not address COVID-19-related sick leave provisions, an employer must comply with this ordinance unless and until the agreement is amended to include an express, clear, and unambiguous waiver.
How long will the ordinance remain in effect? The ordinance will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.
For more information regarding Los Angeles’s Supplemental Paid Sick Leave Ordinance and rules and regulations for implementation, visit: https://www.lamayor.org/sites/g/files/wph446/f/page/file/SUPPLEMENTALPAIDSICKLEAVE.pdf and https://wagesla.lacity.org/sites/g/files/wph471/f/COVID19-SPSL-RR-20200411.pdf.
The City of San Jose adopted an ordinance that requires larger employers to provide emergency paid sick leave. The ordinance is meant to fill the gaps left by the FFCRA and applies to employers that are not required, in whole or in part, to provide paid sick leave benefits under the FFCRA.
What employers are covered? The ordinance applies to employers that meet both of the following requirements: (1) the employer is subject to the Business License Tax required by Chapter 4.76 of the Municipal Code, or maintains a facility within the boundaries of the City; and (2) the employer is not required to provide paid sick leave benefits under the federal FFCRA (i.e., employers with over five hundred (500) employees).
Who is entitled to leave? Even if an employer is covered by the ordinance, it is not required to provide all of its employees with the paid sick leave benefit. Employers are required to provide the paid sick leave benefit to employees meeting both of the following requirements: (1) the employee has worked for the employer for at least two (2) hours within the geographic boundaries of the City of San Jose; and (2) the employee leaves their own residence to perform “essential work” for the employer. “Essential work” means work that employees are lawfully allowed to leave their residences to perform under the “shelter in place” order of the Health Officer of the County of Santa Clara, dated March 16, 2020, as amended on March 31, 2020.
How much leave must be provided? A full-time employee is entitled to eighty (80) hours of paid sick leave, and 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. The weekly average is calculated by using the hours the employee worked per week between October 8, 2019 and April 7, 2020. If an eligible employee has worked for less than 6 months, then the average hours the employer expected at the time of hire will be used.
Supplemental paid sick leave to an employee will not exceed $511 per day and $5,110 in the aggregate. The employer may pay an employee using sick time to care for another person at 2/3 of the employee’s regular rate of pay up to $200 per day and $2,000 in the aggregate.
For what reasons can employees take the leave? Employees may use the above sick leave 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;
- 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;
- Experiencing symptoms of COVID-19 and is seeking medical diagnosis; or
- Caring for a minor child because a school or daycare is closed due to COVID-19.
Who is exempt from the ordinance? An employer may be exempt from the ordinance if it provides its employees with some combination of paid personal leave at least equivalent to the paid sick time required by the ordinance.
An employer that provides some combination of paid personal leave less than the paid sick time required by this ordinance is required to comply with this ordinance to the extent of such deficiency. (For example, if an employer provides a total of 50 hours of time off to its full-time employees, the employers would need to provide an additional 30 hours of emergency paid sick leave to comply with the ordinance.)
The ordinance is not intended to require provision of sick leave to employees who can work from home.
How long will the ordinance remain in effect? The ordinance will remain in effect until December 31, 2020.
For more information regarding San Jose’s COVID-19 Paid Sick Leave Ordinance, visit: https://www.sanjoseca.gov/your-government/departments-offices/public-works/labor-compliance/urgency-covid-19-paid-sick-leave-ordinance.
San Francisco also passed its Public Health Emergency Leave Ordinance to fill the gap left by the FFCRA.
What employers are covered? Employers with 500 or more employees worldwide must comply with the ordinance for their covered San Francisco employees, including businesses that have temporarily closed or suspended operations and essential businesses. Employers defined as “Covered Employers” under the FFCRA are not subject to the San Francisco ordinance.
Who is entitled to leave? Leave under the ordinance must be provided to any worker providing services for payment, whether or not those workers are currently scheduled to work. The definition of employees is very broad and includes full-time, part-time, temporary, and possibly furloughed employees, regardless of how long the employee has been employed. Workers are “employees” if they live in San Francisco and perform work from home for 56 or more hours within a calendar year; or perform work outside of San Francisco, but stops in San Francisco to perform work – such as to make pickups or deliveries – for a total of 56 or more hours within a calendar year.
How much leave must be provided? Employees who worked full-time as of February 25, 2020 are entitled to eighty (80) hours of paid leave. Employees who worked part-time as of February 25, 2020 are entitled to the average number of hours that the employee was scheduled to work over two (2) weeks during the six (6) month period prior to February 25, 202. The total number of hours of paid leave taken in a week may not exceed the average number of hours for which the employee is normally scheduled over a one-week period.
Covered employers must provide this leave in addition to any paid time off that was offered to employees on or before the ordinance was enacted. An employer’s obligation will be reduced for every hour of leave that it has allowed employees to take paid time off for purposes consistent with the ordinance, provided that the leave was in addition to previously accrued hours. This credit may be taken for such paid time off provided after February 25, 2020.
Leave must be paid in the same manner as other paid sick leave under the San Francisco Paid Sick Leave Ordinance – at the employee’s regular rate of pay for the workweek in which the leave is taken or by using a 90-day lookback period.
Leave may be taken in increments of one hour, and employers cannot require employees to take leave in increments greater than an hour.
For what reasons can employees take the leave? Employees can take the additional leave if the employee is unable to work or telework because 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 (this includes an employee who is a member of a vulnerable or high-risk population and who is therefore unable to work as recommended by San Francisco Public Health Orders, Executive Orders of the Governor, or orders of other Bay Area jurisdictions);
- Advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised by a healthcare provider;
- Experiencing symptoms of COVID-19 and is seeking medical diagnosis or is caring for a family member who is experiencing symptoms of COVID-19;
- Caring for a family member due to a school or daycare closure related to COVID-19; or
- Experiencing any other substantially similar condition specified by the Local Health Officer or under FFCRA section 5102(a)(6), by the United States Secretary of Health and Human Services.
Health care providers and emergency responders must also be provided this leave where they are unable to work because:
- They have been advised by a health care provider to self-quarantine; or
- They are experiencing symptoms associated with COVID-19, seeking a medical diagnosis, and do not meet the CDC criteria requirements to return to work.
How long will the ordinance remain in effect? The ordinance will remain in effect until June 17, 2020, unless reenacted by the Board of Supervisors, or upon termination of the Public Health Emergency, whichever occurs first.
For more information regarding San Francisco’s Public Health Emergency Leave Ordinance, visit: https://sfgov.org/olse/.
While the City of San Diego has not adopted a supplemental paid sick leave law, it has issued guidance indicating employees may take paid leave due to COVID-19-related reasons under its Earned Sick Leave and Minimum Wage Ordinance. This ordinance states that covered employees must: (1) accrue no less than one (1) hour of earned sick leave for every thirty (30) hours worked, and employers may cap the total accrual of sick leave at eighty (80) hours; OR (2) be provided no less than forty (40) hours of earned sick leave at the beginning of each benefit year.
For what reasons can employees take paid leave? According to the City’s Earned Sick Leave COVID-19 guidelines, an employee covered by the above ordinance may use accrued earned sick if the employee is:
- Working for a business closed by order of a public official due to a Public Health Emergency;
- Providing care or assistance to a child whose school or childcare provider is closed by order of a public official due to a Public Health Emergency;
- Taking time off work because public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease;
- Taking time off work because they are 65 or older or have a serious chronic medical condition as described by the Centers for Disease Control; or
- Taking time off work because the Employee needs to provide care for a family member, by blood or affinity, who public health officials or healthcare providers have required or recommended isolate or quarantine.
For more information regarding San Diego’s Earned Sick Leave and Minimum Wage Ordinance and COVID-19 guidelines, visit: https://www.sandiego.gov/treasurer/minimum-wage-program.
The City of Santa Monica’s Minimum Wage Ordinance includes a paid sick leave provision which states that employees must (1) accrue no less than one (1) hour of earned sick leave for every thirty (30) hours worked, and employers may cap the total accrual of sick leave at forty (40) hours for small businesses (25 or fewer employees) and seventy-two (72) hours for larger businesses; OR (2) be provided with no less than forty (40) hours for small businesses and seventy-two (72) hours for larger businesses of sick leave at the beginning of each benefit year. Use caps are not permitted.
Under the Santa Monica ordinance, employees can use leave for preventative care, which the California Labor Commissioner has stated may include self-quarantine due to potential COVID-19 exposure if civil authorities recommend quarantine.
For more information regarding Santa Monica’s Minimum Wage Ordinance and its paid sick leave provision, visit: https://beta.smgov.net/strategic-goals/inclusive-diverse-community/minimum-wage-ordinance.
Similar to San Diego, the City of Emeryville has not adopted a supplemental paid sick leave law, but has issued guidance indicating employees may take paid leave under its existing Minimum Wage, Paid Sick Leave Ordinance due to COVID-19-related reasons. Emeryville’s ordinance requires paid sick leave for full-time, part-time, and temporary employees at a minimum of 48 hours accruable for employees of small businesses (55 or fewer employees within City limits) and 72 hours for employees of large businesses (56 or more within City limits).
For what reasons can employees take leave? According to the City’s COVID-19-related guidance, employees can use their accrued sick leave if the employee is taking time off work because:
- Public health officials or healthcare providers require or recommend the employee isolate or quarantine to prevent the spread of disease;
- The employee falls within the definition of a “vulnerable population” under the guidance from the State or any other official subsequent updates;
- The employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation;
- The employee needs to provide care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or
- The employee needs to provide care for a family member whose school, childcare provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.
For more information regarding Emeryville’s Minimum Wage, Paid Sick Leave Ordinance and COVID-19 guidelines, visit: https://www.ci.emeryville.ca.us/1024/Minimum-Wage-Ordinance.
Circumstances surrounding COVID-19 are constantly changing at federal, state, and municipal levels. For example, the City of Oakland has yet to introduce a supplemental COVID-19-related paid sick leave ordinance, but one is under way.
In these unprecedented times, employers are given little time to adapt and develop the necessary policies and procedures – it is more important than ever to stay current. Check back for here for updates and consult with legal counsel regarding any questions to ensure your business is compliant. Check out ALBB’s Knowledge Center for other COVID-19-related guidance here: https://www.albblaw.com/knowledge-center/.