As previously reported, the Sacramento City Council recently enacted its Worker Protection, Health, and Safety Act, an emergency ordinance that requires covered employers to provide supplemental paid sick leave for COVID-19-related reasons. Additionally, under the ordinance, all Sacramento employers must implement and follow certain physical distancing, mitigation, and cleaning protocols and practices, and employees have the right to refuse to work if employers fail to meet health and safety standards. Employers must comply with the requirements of the ordinance starting July 15, 2020.
Under the ordinance, an “employer” is defined as a person operating a business in the City of Sacramento and who directly or indirectly employs or exercises control over the wages, hours or working conditions of any employee. However, the supplemental paid sick leave provisions only apply to employers exempt under federal Emergency Paid Sick Leave (EPSL) of the Families First Coronavirus Response Act (FFCRA), which is employers with 500 or more employees nationally. An EPSL-exempt employer of an employee who is a health care provider or an emergency responder (as defined in 29 C.F.R. section 826.30(c)) may exclude those employees from the provision’s requirements.
An “employee” is a person who works within the boundaries of the City of Sacramento for their employer and is an “employee” as defined by California Labor Code section 2750.3 (also known as “AB 5”).
Supplemental Paid Sick Leave
Employers with 500 or more employees nationally must provide Supplemental Paid Sick Leave (SPSL) to their employees. The SPSL is in addition to any other paid sick leave, paid time off or vacation time that an employer currently provides to an employee by statute, policy or collective bargaining agreement (CBA).
Full-time employees are entitled to 80 hours of SPSL.
Part-time employees are entitled to an amount of SPSL hours equal to the number of hours worked on average over a two-week period. To calculate the average, an employer must use the number of hours worked by the employee for each week the employee worked during the six months immediately preceding July 15, 2020, multiplied by two.
Covered Uses and Rate of Pay
An employee who is unable to work or telework may use SPSL if the employee is:
- Subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for a family member 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 a family member who is so advised by a health care provider;
- Choosing to take off work because the employee is over the age of 65 years or is considered vulnerable due to a compromised immune system;
- Off work because their employer or specific location temporarily ceases operation due to a public health order or other public official’s recommendation;
- Experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or
- Caring for a minor child because a school or daycare is closed due to COVID-19.
Employers should take note that qualifying reasons #3 and #4 are in addition to those under the federal EPSL.
An employee using SPSL for their own purposes is entitled to their regular rate of pay, subject to a $511 daily cap and $5,110 total for the entire benefit. An employee using SPSL to care for a family member is entitled to 2/3 of their regular rate of pay, subject to a $200 daily cap and $2,000 total for the entire benefit.
Unused SPSL expires when the ordinance sunsets, and an employee is not entitled to be paid for unused SPSL under any circumstances.
An employer may not:
- Require an employee to use other accrued paid sick leave, paid time off or vacation time before using SPSL;
- Require an employee to find a replacement worker as a condition of using SPSL; or
- Issue any discipline or attendance points based on a no-fault attendance policy for an employee’s use of SPSL.
The following restrictions apply to employees:
- If requested by the employer, the employee shall provide the basis for requesting SPSL; however, a doctor’s note or other documentation is not required.
- An employer may require the employee to follow reasonable notice procedures before providing SPSL, but only when the employee’s need for SPSL is foreseeable.
If an employer has granted additional paid sick leave (beyond any paid sick leave, paid time off or vacation time provided by statute, policy or CBA) since March 19, 2020, specifically for COVID-19-related reasons described in the SPSL provisions of the ordinance, the employer may use those leave hours as credit against the number of SPSL hours required by the ordinance. Additionally, if an employee is entitled to leave hours under Executive Order N-51-20 (for food sector workers), the employer may use those leave hours as a credit against the number of SPSL hours required by the ordinance.
Employer Safety Practices and Protocols
Under this provision of the ordinance, all Sacramento employers must implement (as applicable) the following physical distancing, mitigation and cleaning protocols and practices:
- Daily cleaning and disinfection of high-touch areas in accordance with Centers for Disease Control and Prevention (CDC) guidelines.
- Maintenance of employer-established cleaning protocols for all other areas of the employment site.
- Establish protocols for what to do upon discovery that the employment site has been exposed to a person who is a probable or confirmed case of COVID-19.
- Provide employees access to regular handwashing with soap, hand sanitizer and disinfectant wipes.
- Clean common areas (such as break rooms, locker rooms, dining facilities, restrooms, conference rooms and training rooms) daily and between shifts.
- Provide face coverings for employees to wear during their time at the employment site, and mandate their wear while on the site, except to the extent an employee can maintain a physical distance of six feet from others or is using break time to eat or drink, in accordance with CDC guidance. Employers must establish protocols specifically regarding how it will ensure proper physical distancing.
- Provide written notice of required protocols and practices, in English and any language spoken by at least 10 percent of the employees who are at the work site.
For employees working at worksites not owned, maintained, leased or controlled by their employer, an employer is not in violation of requirements 1, 2 and/or 5 if the employer has taken steps to contact the entity that owns, maintains, leases or controls that other worksite to encourage compliance with those provisions.
Employee Right to Refuse Work
An employee may refuse to work for an employer if the employee reasonably believes the employer is in violation of one or more of the ordinance’s required safety practices and protocols and provides notice to the employer of the alleged violation.
The City may investigate whether the employer was in violation of the safety provisions of the ordinance as alleged by the employee. Within 15 days of written notice from the city, employer must cure any alleged violation that’s been substantiated by the city. If, however, the city finds no violation or if the employer provides proof that it has cured any violation, the employer no longer has the right to refuse to work.
Anti-Retaliation Provision and Enforcement
Employers may not terminate, discipline, discriminate or retaliate against, or reduce the compensation of any employee for exercising their rights under the ordinance, for participating in proceedings related to the ordinance, or for refusing to work based on alleged violation of the ordinance.
An employee may bring a civil action against an employer, but only for retaliation, and the action must be brought within one year of an alleged violation. Additionally, an employee cannot bring a civil action until they have provided written notice to their employer of the alleged violation including all supporting facts and allowed the employer 15 days to cure the violation. If a civil action is ultimately filed, an employee may be awarded actual damages, punitive damages, reinstatement, front and back pay, reasonable attorney’s fees and costs, and other legal or equitable relief.
The ordinance will remain in effect until December 31, 2020.