As previously reported, San Mateo County recently adopted an urgency ordinance requiring employers to provide temporary emergency paid sick for leave related to COVID-19. The emergency ordinance is aimed at larger employers not already covered by the Families First Coronavirus Response Act (FFCRA) and went into effect on July 8, 2020.
The ordinance covers private employers with 500 or more employees within the U.S., including the District of Columbia, or any U.S. territory or possession.
A covered “employee” is an individual, regardless of immigration status, who has been required to perform work within the geographic boundaries of unincorporated San Mateo County since January 1, 2020. For purposes of the ordinance, a worker is presumed to be an employee, and an employer has the burden to demonstrate that a worker is a bona fide independent contractor, not an employee.
A food sector worker, as defined in Governor Newsom’s Executive Order N-51-20, is excluded from the definition of “employee.”
Sick Leave Requirement
Beginning July 8, 2020, an employer must provide supplemental paid sick leave (SPSL) to employees as follows:
- Full-time employees normally scheduled to work 40 hours or more per week are entitled to 80 hours of SPSL.
- Part-time employees normally scheduled to work fewer than 40 hours per week are entitled to SPSL in an amount no greater than the employee’s average number of work hours over a two-week period, calculated over the period from January 1, 2020, through July 7, 2020.
Covered Uses and Rate of Pay
An employer must provide SPSL upon an employee’s written request, if an employee cannot work or telework because the employee:
- Has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- Needs to care for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine related to COVID-19 or is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
- Takes time off work because the employee needs to provide care for an individual whose senior care provider or whose school or childcare provider is closed or unavailable in response to a public health or other public official’s recommendation.
A unique provision of San Mateo’s ordinance is that an employee seeking to use SPSL must make their request in writing (which may include email or text message).
Unlike the federal emergency paid sick leave, SPSL is paid at an employee’s regular rate of pay, up to $511 per day and $5,110 total, regardless of the reason for leave. Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.
An employer may not require an employee use any other paid or unpaid leave, paid time off, or vacation time before the employee uses SPSL, or in lieu of SPSL. However, an employer may request the same information supporting an employee’s request for SPSL as provided for in the FFCRA regulations and guidance.
Under the ordinance, an employer can exempt an employee who is a health care provider, aviation security worker or emergency responder, subject to the following definitions and conditions:
- A “health care provider” is defined as in the FFCRA.
- An “aviation security worker” is defined as any employee performing work on behalf of the Transportation Security Administration (TSA). An exemption applies to an aviation security worker if the employer makes a good faith determination that granting leave for qualifying reasons numbers 3 or 4 (listed above) would make it unable to meet staffing level requirements required to ensure that airports operations are not adversely affected due to staffing shortages.
- An “emergency responder” is defined as in the FFCRA. The employer of an emergency responder may elect to limit such an employee’s use of SPSL, but at a minimum such an employee may use SPSL to the extent that the employee is unable to work (either at the employee’s customary place of work or telework) because: (1) the employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19; or (2) the employee is experiencing COVID-19 symptoms, is seeking a medical diagnosis and does not meet the Centers for Disease Control and Prevention’s guidance for criteria to return to work for healthcare personnel with confirmed or suspected COVID-19.
Provisions of the ordinance may also be expressly waived in a collective bargaining agreement, but only if the waiver is explicitly set forth in clear and unambiguous terms.
If an employer provided additional paid leave specifically for COVID-19-related purposes (“Voluntary COVID-19 Leave”) above and beyond an employee’s regular or previously accrued leaves between March 17, 2020, and June 30, 2020, or provided supplemental leave pursuant to the laws of another jurisdiction requiring the provision of additional paid leave specifically for COVID-19-related purposes at any time, the obligation to provide SPSL under the ordinance is reduced for every hour an employer allowed an employer to take Voluntary COVID-19 Leave in an amount equal to or greater than the ordinance’s requirements. If an employer has provided Voluntary COVID-19 Leave to an employee at a rate of pay or hourly accrual rate less than what is required by the ordinance, then those amounts or hours are offset against the rates and hours as required under the ordinance.
Employers may not discharge, reduce pay or otherwise discriminate against an employee for requesting SPSL or otherwise exercising their rights under the ordinance.
An employee claiming a violation of the ordinance may bring an action in civil court and if successful, may be awarded reinstatement, back pay, SPSL unlawfully withheld, reasonable attorneys’ fees and costs, and other relief the court may deem appropriate.
The ordinance is currently in effect through December 31, 2020.
Bianca Saad, Employment Law Counsel/Subject Matter Expert, CalChamber
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