San Francisco & San Jose Emergency Sick Pay Ordinances Cover FFCRA Gaps
**UPDATE** These rules have been amended. See this post for the latest updates.
In the first two weeks of April 2020, San Francisco and San Jose joined the growing list of cities enacting emergency paid sick leave ordinances to fill gaps left by the federal Families First Coronavirus Response Act (FFCRA). Other Bay Area cities, such as Oakland, are expected to pass similar ordinances in the coming days and weeks.
Under the FFCRA, employers with 500 or fewer employees are required to provide paid sick leave to employees for certain COVID-19 related reasons. San Francisco and San Jose’s Ordinances seek to extend coverage to employers with more than 500 employees. However, San Jose’s Ordinance is limited to employees who perform “essential work.”
Below are key takeaways from San Francisco and San Jose’s Ordinances that employers should know.
San Francisco Ordinance
On April 7, 2020, San Francisco Board of Supervisors passed the Public Health Emergency Leave Ordinance. The Ordinance goes into effect once signed by Mayor London Breed, and will remain in effect until the 61st day following enactment, or when the ongoing public emergency is terminated.
Who Is Covered and What Employees Are Entitled To
Under San Francisco’s Ordinance, all employers who employ 500 or more employees nationally are required to provide COVID-19 related paid sick leave. Healthcare providers are exempt.
An employee qualifies for leave if they have performed 56+ hours of work within San Francisco in the preceding 365 days. Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees are entitled to paid sick leave based on the average number of hours worked per day over the six-month period preceding the date upon which the employee takes leave, including hours for which the employee took leave of any type (if the employee had been working for six or more months) or the number of daily hours that he was expected to work (if less than six months).
COVID-19 related sick leave must be paid to an employee on the first payday following the payroll period during which the leave was taken. An employer cannot require an employee to use other accrued paid time off prior to using sick leave under the Ordinance.
An employee’s rate of pay is calculated based on the calculations set forth in San Francisco’s Paid Sick Leave Ordinance.
Qualifying Reasons for Leave
An employee may take leave if they are unable to work (or telework) due to any 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 unable to work due to Governor Newsom’s Executive Order N-33-20, San Francisco’s shelter-in-place Order No. C19-07b, or any succeeding order requiring residents to stay in their homes during the emergency, or shelter-in-place orders issued in other Bay Area jurisdictions.
- The employee has been advised by a health care provider to self-quarantine;
- The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis;
- The employee is caring for an individual subject to or advised to quarantine or isolate, or is experiencing symptoms associated with COVID-19;
- 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;
- The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Offsets Available to Employers
If an employer has already provided an employee with leave for any of the above reasons as of February 25, 2020, any additional hours an employer provides can be offset against the leave required under the Ordinance.
Notice Requirements in the Workplace
Within three days of the Office of Labor Standards and Enforcement posting notice of the Ordinance, employers are required to provide notice to employees in a manner calculated to reach all employees, including:
- By posting in a conspicuous place at the workplace;
- Via electronic communication; and/or
- By posting in a conspicuous place in an employer’s web-based or app-based platform.
Notice Requirements on Paystubs
“To the extent possible,” employers are required to set forth the amount of COVID-19 related sick leave that is available to an employee on their paystub.
San Jose Ordinance
The San Jose Ordinance is effective from April 7, 2020 to December 31, 2020. Unused COVID-19 related sick leave is not available after the Ordinance ceases to exist.
Who Is Covered and What Employees Are Entitled To
Like San Francisco’s Ordinance, the San Jose Ordinance applies to all employers who employ 500 or more employees nationwide. In order to be eligible, employees must have worked at least two hours within the city of San Jose. However, unlike the San Francisco Ordinance which applies to all employees regardless of industry, the San Jose Ordinance applies only to employees who leave their residence to perform “essential work.”
Full-time employees are entitled to 80 hours of paid sick leave under the San Jose Ordinance and part-time employees are entitled to paid sick leave based on the average number of hours worked per day during the six months immediately preceding April 7, 2020 (if the employee had been working for six or more months) or the number of daily hours that he was expected to work (if less than six months).
Compensation for COVID-19 related sick leave is capped at $511 per day, or $5,110 in the aggregate.
Qualifying Reasons for Leave
An employee can take paid sick leave for any of the following four reasons:
- The employee is quarantined or caring for someone who is quarantined for COVID-19;
- The employee is ordered by a health care provider to self-quarantine;
- The employee is experiencing COVID-19 symptoms and seeking medical diagnosis; or
- The employee is caring for a child whose school or day care is closed due to COVID-19.
Offsets Available to Employers
Also, like San Francisco, San Jose’s Ordinance gives leeway to employers with generous leave plans already in existence. For example, an employer who provides employees (as of April 7, 2020) “with some combination of paid personal leave at least equivalent” to the 80 hours provided for under the Ordinance is exempt. Likewise, an employer that provides some combination of paid personal leave less than the paid sick time required by the Ordinance is required to comply with [the] Ordinance only to the extent of the “deficiency.”
Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Michelle Freeman in the San Francisco office, mfreeman@hkemploymentlaw.com, (415) 835-9003, or Dan Handman in the Los Angeles office, dhandman@hkemploymentlaw.com, (310) 255-1820.
For additional employer-focused information about COVID-19:
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