On May 12, 2020, the Oakland City Council unanimously passed the Emergency Paid Sick Leave for Oakland Employees ordinance, effective immediately upon adoption, to provide additional paid sick leave to employees who need time off for COVID-19-related reasons. The Oakland ordinance coverage includes large employers with 500 or more employees who are excluded from the emergency paid sick leave requirements under the federal Families First Coronavirus Response Act (FFCRA), but also imposes some additional requirements on employers already covered by the FFCRA.
This ordinance applies to any business who has an employee who performed at least two hours of work within the geographic city boundaries (including the Port of Oakland) after February 3, 2020. [Employers, don’t forget: If you have employees living in Oakland who have been working remotely from homes, this and other Oakland ordinances may apply.]
Notably, coverage is not limited to employers with 500 or more employees; however, employers already covered under the FFCRA (499 or fewer employees) may credit the total sick leave hours provided under the FFCRA against their emergency paid sick leave hours obligation under the ordinance.
Small employers who employed fewer than 50 employees between February 3, 2020, through March 4, 2020, are exempt from the ordinance, except for unregistered janitorial employers or franchisees associated with a franchisor or network of franchises where that franchisor or network employs more than 500 employees total.
Sick Leave Requirement
Employers must pay emergency sick leave based on whether an employee is full-time or part-time, which is determined by the number of hours an employee worked within the city of Oakland between February 3, 2020, and March 4, 2020, and at any point thereafter.
- Full-time employees (those who worked at least 40 hours per week during the above time period or their employer classifies as full-time) are immediately entitled to 80 hours of Oakland emergency paid sick leave.
- Part time employees (those who worked fewer than 40 hours per week) are immediately entitled to Oakland emergency paid sick leave equal to the number of hours the employee worked within the City of Oakland over 14 days during the above period. Those fourteen days must be the fourteen days with the highest number of hours worked within the City of Oakland between February 3, 2020, and March 4, 2020.
The above methods also apply for determining the hours of emergency paid sick leave for employees that began working after March 4, 2020.
Qualifying Reasons for Use
An employee may use their Oakland emergency paid sick leave for any of the same qualifying reasons permitted under the FFCRA — if the employee is 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 concerns related 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 an order described in (1), or self-quarantine as described in (2) above;
- The employee is caring for a son or daughter whose school or place of care is closed, or the child care provider is unavailable due to COVID-19 precautions; or
- The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.
However, under Oakland’s ordinance, employees must also be allowed to use their emergency paid sick leave if they are unable to work or telework for any of the additional purposes:
- To enable the employee to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
- To take time off work because 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;
- Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
- Has any condition certified by a health care professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.
An employer may not require a doctor’s note or other documentation for using Oakland emergency paid sick leave, unless to certify a health condition referenced in 8d above. But the employee doesn’t need to disclose their condition, only that they are at a heightened risk for serious illness or death if exposed to COVID-19.
Employees can use the leave for any purpose in one-hour increments and intermittently, as necessary. Employers cannot require an employee to use leave in more than one-hour increments.
Where the need for leave is foreseeable, an employee should provide notice to the employer as soon as practical.
Like with federal emergency paid sick leave, an employee may choose to use Oakland emergency paid sick leave before any other leave required to be provided to the employee under Oakland’s Paid Sick Leave Ordinance (Oakland Municipal Code section 5.92.030). Employers cannot require an employee to use any other leave before using their sick leave under the ordinance.
The amount of pay in Oakland’s ordinance goes above and beyond federal requirements.
Under the FFCRA, employers must pay either 100 percent or 2/3 of the employee’s regular rate of pay, depending on the qualifying reason for leave. In the FFCRA, for qualifying reasons 1 through 3, where an employee is taking leave due to their own circumstances/condition, they can receive 100 percent of their regular rate of pay, subject to a $511 daily cap and $5,110 total cap. For qualifying reasons 4 and 5 (qualifying reason #6 is currently a “catch-all”), where an employee is caring for someone else, they only receive 2/3 their regular rate of pay, up to a $200 daily cap and $2,000 total cap.
Not making this distinction, Oakland requires all covered employers — even those already covered by the FFCRA — to pay their employees at 100 percent of the employee’s normal hourly wages for any qualifying reason, subject to a $511 daily cap and $5,110 total cap.
The Oakland emergency paid sick leave must be paid no later than the payday for the next regular payroll period after the leave is taken, and never more than 14 days after leave is taken.
Employers can’t reduce or eliminate contributions to an employee’s health benefits while an employee is using emergency paid sick leave.
Payout of Accrued, Unused Oakland Paid Sick Leave Upon Layoff
Oakland’s emergency sick leave ordinance has a unique requirement that if an employer lays off an employee, the employer must pay out previously accrued, unused paid sick leave provided under the Oakland Paid Sick Leave Ordinance (but not emergency paid sick leave) to laid off employees.
In addition to excluding small employers with fewer than 50 employees between February 3, 2020, through March 4, 2020, (except for unregistered janitorial employees and certain franchisees), the ordinance provides these additional exemptions:
- Employers who are health care providers or emergency responders, as defined under federal law (29 CFR sec. 826.30(c) under the FFCRA), may choose exemption from the ordinance requirements. Employers electing this exemption must retain information describing the employee classifications exempted, from which location, and which provisions, for three years from the date the exemption was elected.
- Employers who, after February 3, 2020, provide its employees with at least 160 hours of paid personal leave (excluding paid holidays), so long as: (a) each employee has immediate access to at least 80 hours of leave after May 12, 2020, available to be used for the ordinance’s qualifying reasons; and (b) for any employee whose accrued paid personal leave balance is below 80 hours on May 12, 2020, brings that employee’s balance up to 80 hours, available to be used for the ordinance’s qualifying reasons.
- Employers who, after February 3, 2020, provide its employees immediate access to at least 80 hours of paid personal leave (or the equivalent for part-time employees), available to be used for the ordinance’s qualifying reasons. For this exemption to apply, the paid personal leave must be in addition to any paid leave the employer was otherwise required to provide prior to February 3, 2020.
- Provisions of the ordinance may be waived by valid collective bargaining agreement, so long as the terms are clear and unambiguous.
Oakland must prepare and publish on its website a notice for employers to post in a way that it will reach all employees, including but not limited to:
- Posting in a conspicuous place at the workplace;
- Via electronic communication; or
- Posting in a conspicuous place in an employer’s web-based or app-based platform.
Employers must post and/or provide the notice to their employees within three days after the city publishes it. The notice will be translated into Spanish, Mandarin, Cantonese, and Vietnamese (at a minimum), and employers must provide the notice in all languages spoken by more than ten percent of employees.
Enforcement and Regulations
The same enforcement remedies available under Oakland’s Paid Sick Leave Ordinance will apply to emergency paid sick leave enforcement. On or after July 1, 2020, the Department of Workplace and Employment Standards may issue rules and regulations to provide additional guidance.
The ordinance will expire on December 31, 2020, unless the City Council extends it.
Access additional COVID-19-related HRWatchdog blogs.