Oakland Adopts Emergency Paid Sick Leave Ordinance
This week, the City of Oakland joined Los Angeles, San Jose, and San Francisco in enacting emergency paid sick leave obligations for employers. The Oakland ordinance is effective immediately and the requirements are summarized below.
Oakland’s new emergency paid sick leave ordinance applies to employees who have performed at least two hours of work in the City of Oakland since February 3, 2020.
Amount of Emergency Paid Sick Leave
Covered full-time employees (those who worked 40+ hours per week between February 3, 2020 to March 4, 2020 or at any time thereafter, and/or who are classified as full-time by their employer) are entitled to 80 hours of emergency paid sick leave. Part-time employees are entitled to emergency paid sick leave equal to the highest average number of hours they worked in the City of Oakland over a 14-day period from February 3, 2020 to March 4, 2020. If an employee begins providing service for an employer after March 4, 2020, the employee is still entitled to emergency paid sick leave in these specified amounts.
Qualifying Uses of Emergency Paid Sick Leave
Covered employees may use emergency paid sick leave if they are unable to work or telework for any of the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order related to Covid-19;
- The employee has been advised by a health care provider to self-quarantine due to Covid-19;
- The employee is experiencing symptoms of Covid-19 and is seeking a medical diagnosis;
- The employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to quarantine;
- The employee is caring for a son or daughter whose school or place of care has been closed or is unavailable due to Covid-19;
- The employee needs to care for a family member who has been diagnosed with Covid-19 or is experiencing symptoms of Covid-19;
- The employee is at least 65 years old; has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; or has any other health condition identified by federal or Alameda County health officials and/or a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to Covid-19.
Documentation of Need for Leave
An employer may not require a doctor’s note or other documentation supporting an employee’s use of emergency paid sick leave, except in the case of an employee who takes leave because the employee has some “other health condition” identified by a healthcare professional as putting the employee at heightened risk for serious Covid-19 illness. In this instance, the employee need not disclose the specific health condition, only that they are at heightened risk.
Increments of Use
An employer may not require an employee to use emergency paid sick leave in greater than one-hour increments. An employee also must be permitted to use leave intermittently.
Amount of Pay
An employer must pay an employee who uses emergency paid sick leave the employee’s normal hourly wages, not to exceed $511 per day or $5,110 in the aggregate. Pay for emergency sick leave must be provided no later than 14 days after the sick leave is used.
Sequencing of Leave
An employee may not be required to exhaust other forms of paid leave prior to using emergency paid sick leave under the new ordinance.
Maintenance of Health Benefits
The employer must maintain group health benefits on the same terms as if the employee was actively reporting to work, during the employee’s use of emergency paid sick leave.
The ordinance provides a few different exemptions from its requirements:
- Employers covered by the federal Families First Coronavirus Response Act (e.g. private sector employers with fewer than 500 employees) may credit their compliance with the FFCRA against their emergency paid sick leave obligations under the new Oakland ordinance.
- Employers of employees who are healthcare providers or emergency responders (as defined by FFCRA regulation 29 CFR 826.30(c)) may elect to exempt these employees from the provisions of the ordinance. If an employer elects this exemption, the employer must retain information describing the classifications exemption and their locations for three years.
- The ordinance also exempts employers who have leave policies that provide employees with the ability to accrue up to 160 hours of paid leave; however, at least 80 hours of leave must be immediately available to the employee for the emergency sick leave uses described in the Oakland ordinance by May 12, 2020. If the employee does not have 80 hours available, the employee must make at least 80 hours available.
- The ordinance also exempts employers who, after February 3, 2020, already have provided covered employees with at least 80 hours of paid sick leave (or the part-time equivalent) for Covid-19 reasons. This sick leave must be in addition to paid time off the employee was already entitled to accrue prior to February 3, 2020.
- Small employers with fewer than 50 employees between February 3, 2020 and March 4, 2020 are exempt (unless the small employer is an unregistered janitorial employer or a franchisee of a franchisor or network of franchises that employs over 500 employees in the aggregrate).
- A collective bargaining agreement may waive the provisions of the ordinance in clear and unmistakable terms.
New Requirement to Pay Out Previously Accrued, Unused Non-Emergency Paid Sick Leave in Event of Layoff
The emergency paid sick leave ordinance contains a crazy provision requiring employers to pay out previously accrued paid sick leave to employees who are laid off. Specifically, if an employer lays off a covered employee on or after May 12, 2020, the employer must payout to the employee all of the employee’s previously accrued, unused non-emergency paid sick leave provided under the Oakland Paid Sick Leave Ordinance (the local paid sick leave ordinance that was already in place prior to the new emergency paid sick leave ordinance being adopted this week). The ordinance does not require payout of additional emergency paid sick leave.
The City of Oakland will be preparing and publishing a notice for employers to post to inform employees of their rights under the new ordinance. Employers are required to provide the notice to employees within three days of it being made available.