On September 1, 2020, the Sacramento County Board of Supervisors adopted an ordinance called the “Sacramento County Worker Protection, Health, and Safety Act of 2020,” which contains two major components: (1) employer safety practices and protocols, and (2) supplemental paid sick leave. The ordinance will take effect on October 1, 2020. The county’s ordinance is very similar to the City of Sacramento’s Worker Protection, Health and Safety Act, an emergency ordinance that took effect in July.
Covered Employers/Employees
Under the ordinance, an “employer” is defined as a person operating a business in the unincorporated area of the County of Sacramento and who directly or indirectly employs or exercises control over the wages, hours or working conditions of any employee.
Employers of all sizes must comply with the ordinance’s safety practices and protocols provisions, but the supplemental paid sick leave provisions only apply to employers with 500 or more employees nationally, who are exempt from providing Emergency Paid Sick Leave (EPSL) under the Families First Coronavirus Response Act (FFCRA). However, an EPSL-exempt employer of an employee who’s 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 requirements of this article.
An “employee” is a person who works within the unincorporated area of the County of Sacramento for their employer and is an employee as defined by California Labor Code section 2750.3.
Employer Safety Practices and Protocols
All covered 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 at least 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.
When employees are working offsite at a worksite not owned, maintained, leased or controlled by the employer, an employer is not in violation of the above requirements if they have taken steps to contact the entity that owns, maintains, leases or controls the worksite to encourage compliance with those provisions.
Employee Right to Refuse Work Under Certain Circumstances
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 county may, but is not obligated to, investigate whether the employer was in violation of the safety provisions of the ordinance as alleged by the employee, and within 15 days of written notice from the county, the employer must cure any alleged violation that the county has substantiated. If, however, the county finds no violation or if the employer provides proof that it’s cured any violation, the employee no longer has the right to refuse work.
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 who work at least 40 hours per week for an employer, or who are classified by the employer as full-time before October 1, 2020, 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 October 1, 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 time 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 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.
An employee using SPSL for their own purposes is entitled to their regular rate of pay, subject to a daily cap of $511 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 daily cap of $200 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.
Employer/Employee Restrictions:
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.
Employees are subject to the following restrictions:
- If requested by the employer, the employee must provide the basis for requesting SPSL; however, a doctor’s note or other documentation is not required.
- An employee may be required by the employer to follow reasonable notice procedures before using SPSL, but only when the employee’s need for SPSL is foreseeable.
Employer Offsets
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, the employer may use those leave hours as credit against the number of SPSL hours the ordinance requires. Additionally, if an employee is a food-sector worker entitled to leave hours under Executive Order N-51-20 (now codified by AB 1867), the employer may use those leave hours as a credit against the number of SPSL hours required by the ordinance.
Anti-Retaliation Provision and Enforcement
Employers shall not discipline, terminate, reduce the compensation, or otherwise discriminate or retaliate against any employee for seeking to exercise their rights under the ordinance, for participating in any proceedings related to the ordinance, or for refusing to come to work if that refusal is based on an alleged violation of safety protocols and practices.
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 be in effect through December 31, 2020.
Covered employers with 500 or more employees should familiarize themselves with both the county ordinance and AB 1867, and work with legal counsel to ensure compliance with both laws.
Bianca Saad, Employment Law Counsel/Subject Matter Expert, CalChamber
CalChamber members can read more about COVID-19: Sacramento City Worker Protection, Health, and Safety Act in the HR Library. Not a member? See what CalChamber can do for you.
