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San Francisco and San Jose Adopt New COVID-19 Paid Sick Leave Requirements
Apr 14, 2020

San Francisco and San Jose Adopt New COVID-19 Paid Sick Leave Requirements

Topics: COVID-19, Employee Leave

On April 7, 2020, the cities of San Francisco and San Jose passed emergency paid sick leave ordinances that require covered employers to provide additional paid sick leave to employees for COVID-19 purposes. The San Jose ordinance took effect immediately on April 7, but unhelpfully, city government did not publish (and still has not published) the ordinance or any information about it on its official websites.  The San Francisco ordinance still needs to be signed into law by the mayor (which is highly likely to happen any day now), at which time it will take effect immediately.  Here are the details of each of these ordinances:

San Francisco Ordinance

Covered Employers and Employees

The San Francisco ordinance essentially aims to require employers who are not covered by the recently enacted federal paid leave law (the FFCRA) to provide the same paid sick leave benefits required of employers who ARE covered by the FFCRA.  In essence, this means that private sector employers with 500 or more employees nationally are covered.  These employers are required to provide additional paid sick leave to employees working in San Francisco.  A “covered employee” is an employee who has performed at least 56 hours of work within the city of San Francisco in the last year.  Employers may exclude health care providers and emergency responders, as those terms are defined for purposes of the FFCRA.  See the DOL’s guidance on these terms here (Questions 56-57) https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

Amount of Paid Sick Leave

The ordinance requires covered employers to provide up to 80 hours of paid sick leave to full-time employees.  Part-time employees are entitled to sick leave equal to the number of hours they work on average in a two week period. 

Limited Offset

The requirement to provide additional public health emergency paid sick leave is on top of existing paid sick leave required by law and/or provided under company policies.  However, an employer is entitled to a limited offset for any paid leave provided for COVID-19 reasons after February 25, 2020 that was over and above an employee’s previously accrued hours.  An employer cannot require an employee to exhaust previously accrued paid time off prior to taking the emergency paid sick leave required under the ordinance.

Permissible Reasons for Use of Leave

An employee may use paid sick leave if he/she is unable to work (or telework) for 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, including state or local shelter at home orders.  It also includes an employee who is a member of a vulnerable population as defined by state and local shelter at home orders.
  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. The employee is caring for a family member who is subject to an order as described in subsection (1), has been advised as described in subsection (2), or is experiencing symptoms as described in subsection (3).
  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. (6) The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the FFCRA, by the United States Secretary of Health and Human Services.

Increments for Use

An employer may not require employees to use paid sick leave in increments of more than one hour.

Amount of Pay

Emergency paid sick leave must be paid using the same method as is used for normal paid sick leave provided in compliance with San Francisco’s pre-existing paid sick leave ordinance.  (For more detailed information on this, please see here https://sfgov.org/olse/paid-sick-leave-ordinance-pslo.) The caps on paid sick leave compensation that are set forth in the FFCRA do not apply.

Documentation

An employer can require an employee to provide the basis (reason) for using the emergency paid sick leave, but may not require disclosure of private health information and may not require documentation (including a doctor’s note) to substantiate a leave request.

Expiration of Benefit

The emergency paid sick leave benefit expires at the time of expiration of the ordinance (61 days after its enactment [unless extended] or upon termination of the public health emergency, whichever occurs first).  An employee is not entitled to carry over paid sick leave provided under the ordinance and is not entitled to payout of any unused paid sick leave.

Collective Bargaining Agreement Exemption

The ordinance does not apply to employees covered by a CBA if the CBA expressly waives the requirements of the ordinance.

Notice

Employers are required to provide employees notice of their rights under the ordinance within three days of the model notice being published.   A model notice will be published by the Office of Labor Standards Enforcement within seven days after enactment of the ordinance.

Employers are also required to provide notice to employees of the amount of public health emergency paid sick leave they have available.  This information should be included on the same notice (or pay stub) provided to employees each pay period that shows accrued sick leave hours (under existing state and local paid sick leave laws).

San Jose Paid Sick Leave Ordinance

Covered Employees

The San Jose paid sick leave ordinance, which took effect immediately on April 7, 2020, applies to employees who have worked at least 2 hours within the geographic boundaries of the City of San Jose, and who leave their residences to perform essential work that is exempted from state and local shelter at home orders.

Covered Employers

The ordinance applies to all employers who are not required to provide paid sick leave under the recently-enacted FFCRA.  That means it applies to private sector employers with 500 or more employees, small employers with less than 50 employees (to the extent they are exempt from the FFCRA’s paid sick leave requirements), and employers of health care providers and emergency responders (to the extent those employees have been exempted from the FFCRA’s paid sick leave requirements).  However, if an employer already provides paid time off that is at least equivalent to the amount of leave required by the ordinance, then the employer need not provide additional paid sick leave.  If an employer provides some paid time off, but less than the amount required by the ordinance, then the employer must make up the difference by providing additional paid sick leave.  The ordinance also does not apply to employers that operate a hospital if, by April 21, 2020, the employer provides employees with some combination of paid time off that is at least equivalent to the amount of paid sick leave required by the ordinance.

Amount of Paid Sick Leave and Permitted Uses

A full-time employee must be provided 80 hours of paid sick leave.  A part-time employee must be provided with paid sick leave equivalent to their average number of hours worked in a two-week period.  Paid sick leave can be used for 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 of a school or daycare closure due to COVID-19.

If an employee can work from home, the employee is not entitled to use paid sick leave.

Amount of Pay

An employee using paid sick leave is entitled to be paid his/her regular rate of pay up to a cap of $511 per day or $5110 in the aggregate when the employee uses paid sick leave due to the employee’s own COVID-19 quarantine/isolation/symptoms.  The employee is entitled to be paid two-thirds his/her regular rate of pay up to a cap of $200 per day or $2,000 in the aggregate when the employee uses paid sick leave to care for someone else for COVID-19 reasons.  For a part-time employee, the pay is based on the average number of hours the employee worked per day in the months preceding the request for paid sick leave.  If the employee has not been employed for six months, the amount of paid sick leave is based on the number of hours the employer expected the employee to work at the time of hire.

Expiration of Benefit

The right to paid sick leave ends December 31, 2020.  There is no right to carryover unused paid sick leave, nor any right to payout of any unused sick leave.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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