On August 18, 2020, Sonoma County became the tenth locality to enact an emergency supplemental COVID-19-related paid sick leave ordinance, which sets forth paid sick leave entitlements for certain employees that aren’t already covered by the Families First Coronavirus Response Act and work in the unincorporated areas of Sonoma County. The urgency ordinance took effect immediately upon passage and will end on December 31, 2020, unless extensions are made under the FFCRA.
The new ordinance covers private employers with 500 or more employees, either nationally or locally. It doesn’t apply to employers that are already subject to the federal Emergency Paid Sick Leave (EPSL) provisions of the FFCRA, including but not limited to, any government employers and employers with fewer than 500 employees.
A covered employee is a person employed by an employer and who has worked for the employer for more than two hours within the geographic boundaries of unincorporated Sonoma County, regardless of immigration status. To determine employee status, California Labor Code section 2750.3 (also known as “AB 5”) applies, and an employer has the burden to demonstrate that a worker is a bona fide independent contractor.
An “operational hardship” exemption was considered for health care providers and emergency responders (as defined in the FFCRA*) if the covered use was to care for someone else, but ultimately, the Sonoma County Board of Supervisors decided not to apply such an exemption. As a result, health care providers and emergency responders may use the supplemental paid sick leave for any of the covered uses described below, and covered employers have no discretion to deny such leave.
*As previously reported, the definition of “health care provider” for purposes of an exemption under the FFCRA is currently unclear.
Sick Leave Requirement
A covered employee is entitled to supplemental paid sick leave as follows:
- Full-time employees normally scheduled to work 40 hours per week must receive up to 80 hours of supplemental paid sick leave.
- Part-time employees working fewer than 40 hours per week must receive an amount of supplemental paid sick leave no greater than the employee’s average number of work hours in a two-week period, calculated over the past six months.
As of August 18, 2020, the sick leave benefit is available to eligible employees through the sunset date of the FFCRA, which is currently December 31, 2020. The ordinance also specifies that the sick leave provisions will be automatically extended to the extent that the FFCRA is extended. Employers aren’t required to cash out any unused supplemental paid sick leave benefits to employees.
Upon written request (including, but not limited to, email and text message), an employee may use supplemental paid sick leave if the employee is unable to 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 subject to quarantine or isolation by federal, state or local order due to COVID-19;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
- Needs to care for an individual who is subject to the circumstances described in 1, 2 or 3 above; or
- Needs to provide care for an individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public health official’s recommendation.
The term “individual” is intended to be consistent with the term as used in the FFCRA and its rules, regulations and guidance, and means an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if any of the above circumstances/qualifying reasons were to arise.
A subtle, but noteworthy, distinction is that under the FFCRA, to qualify under reason 5, an employee must be caring for their child whose school or place of care is closed. Under the ordinance, the employee only need be caring for an individual whose school or childcare provider is closed or unavailable, and it also covers circumstances related to senior care, which is not explicitly covered under the FFCRA.
Employers may take reasonable steps to confirm the employee’s eligibility for supplemental paid sick leave, consistent with the FFCRA, and can require employees to follow reasonable notice procedures, but only for foreseeable absences. Also, like the FFCRA, an employer may not require employees to furnish a doctor’s note or other supporting documentation to take the leave. Additionally, employers are prohibited from requiring an employee to find or confirm a replacement worker as a condition of using the leave.
An employer cannot require an employee use any other paid or unpaid leave, sick pay, paid time off or vacation time provided by the employer before the employee uses supplemental paid sick leave.
Rate of Pay
Supplemental paid sick leave hours must be paid at no less than the employee’s regular rate of pay and is subject to a cap of $511 per day and $5,110 total, regardless of the reason for leave. Unlike the federal EPSL, Sonoma County’s ordinance makes no distinction between an employee caring for themselves or for someone else when determining the rate of pay.
For employers that already provide at least 80 hours of accrued paid sick leave benefits as of August 18, 2020, or at least 160 hours of a combination of paid sick leave, vacation and paid time off benefits (“accrued leave benefits”), the obligation to provide supplemental paid sick leave under the ordinance may be deemed satisfied. To the extent accrued paid sick leave benefits afforded employees as of August 18, 2020, are less than 80 hours, or accrued leave benefits are less than 160 hours, an employer must furnish supplemental paid sick leave to the extent of such deficiency.
Notice and Recordkeeping Requirements
Employers must provide notice to employees of their rights under the ordinance by posting a notice in English and Spanish in the workplace, on any intranet or app-based platform, or via email. However, since no particular agency is charged with enforcing the ordinance, and without a model notice, employers are apparently tasked with preparing their own. Additionally, employers must maintain a record of each employee’s name, hours worked and pay rate for a period of at least three years.
Employers may not terminate, reduce pay or otherwise discriminate or retaliate against an employee for requesting to use supplemental paid sick leave, or otherwise exercising their rights under the ordinance.
An employee claiming an ordinance violation may bring an action in civil court and, if successful, may be awarded reinstatement, benefits and back pay unlawfully withheld, reasonable attorney’s fees and costs and/or any other relief the court deems appropriate.