On April 7, 2020, San Jose’s City Council approved a temporary sick-leave ordinance, requiring certain private employers to provide paid sick leave to eligible employees during the current COVID-19 health emergency. The ordinance was passed as an urgency measure and is now in effect.
San Jose’s emergency sick-leave ordinance covers employers that are not required — in whole or in part — to provide paid sick leave benefits under the federal Emergency Paid Sick Leave Act (as required under the Families First Coronavirus Response Act (FFCRA)). This means that employers with 500 or more employees that are exempt from the Emergency Paid Sick Leave Act’s requirements must provide their San Jose employees with sick leave under the city’s ordinance.
Small employers with fewer than 50 employees, who may be exempt from the Emergency Paid Sick Leave Act’s leave requirements when the employee is caring for a child whose school or daycare has closed due to COVID-19, are also covered under San Jose’s ordinance.
Under the ordinance, an “employer” is defined the same way it is for the city’s minimum wage ordinance, which is a person or business subject to the city’s business license requirements or maintaining a business facility in the city.
An “employee” is defined as someone who is employed by a covered employer and has worked at least two hours within the geographic boundaries of the City of San Jose. Employers are required to provide paid sick leave only to those employees who leave their home to perform “essential work” as defined in Santa Clara County Public Health Officer’s order. (While the ordinance references a March 16, 2020, order, an updated order was issued on March 31, 2020). This ordinance is not intended to apply to employees who can work from home.
Covered Uses and Amount of Sick Leave
An employee can use paid sick leave if they have any of the following qualifications:
- 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 health care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health care provider;
- Experiences 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.
If an employee needs time off for any of the above reasons, the employer must provide 80 hours of sick leave to its full-time employees. Part-time employees must receive sick leave equal to the number of hours they work on average over a two-week period.
Additionally, for part-time employees, the employer must calculate the amount of paid sick leave the employee used based on the average number of hours the employee worked per day during the six months immediately preceding the effective ordinance date. If an employee has been employed for less than six months, then the employer will calculate the amount of sick leave used based on the average hours the employer expected the employee to work at the time of hire.
Like with emergency paid sick leave under the FFCRA, sick leave is subject to a cap of $511 per day and $5,110 total. The sick leave hours are available immediately. Like the FFCRA, the two different pay rate standards are: regular rate of pay if use is for personal reasons, and 2/3 regular rate of pay to care for another person.
The ordinance does not apply to any employer that, as of the effective ordinance date, provides its employees with some combination of paid personal leave/paid time off that is at least equivalent to the paid sick time required by the ordinance. However, if an employer provides some combination of paid personal leave that is less than the paid sick time required by the ordinance, then it must provide additional leave to comply with the ordinance.
Any employer operating a hospital is also exempt, so long as the employer provides its employees some combination of paid personal leave that is at least equivalent to the paid sick time required by the ordinance, within two weeks of the effective date of the ordinance — or by April 21, 2020. If the employer’s paid sick time is deficient, the employer must provide additional paid sick time to comply.
The city’s Office of Equality Assurance is authorized to enforce the ordinance, including establishing requirements related to the ordinance, such as requiring employers to post notices.
Updated 6/22/20: An employee notice is available on the City’s webpage and should be posted in a conspicuous place at each location or job site.
Currently, the ordinance is in effect through December 31, 2020.
Additional Local Paid Sick Leaves
As previously reported, the City of Los Angeles has a similar Supplemental Paid Sick Leave requirement for larger employers, and San Francisco will soon join the party. On April 14, 2020, the San Francisco Board of Supervisors approved an updated Public Health Emergency Leave Ordinance (PHELO) requiring employers with 500 or more employees to provide paid “public health emergency leave” during the COVID-19 public health emergency. The ordinance now goes to Mayor London Breed for her signature.
Stay tuned to HRWatchdog for more details on San Francisco’s latest ordinance and any other local emergency ordinances.
Bianca Saad, Employment Law Subject Matter Expert, CalChamber
Visit the CalChamber Coronavirus (COVID-19) webpage for more COVID-19-related federal, state and local resources, including California Counties Health and Stay-at-Home Order pages.
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