On January 19, 2021, Oakland’s City Council approved an emergency ordinance extending the city’s emergency paid sick leave (EPSL) ordinance through the duration of Oakland’s March 9, 2020, Declaration of COVID-19 Emergency. Passed on an emergency basis, the revised ordinance takes effect immediately, retroactive to December 31, 2020.
Substantively, the amended EPSL ordinance largely remains the same as the original ordinance that took effect on May 12, 2020, and no additional time is added to employees’ leave banks.
Nothing has changed in terms of which employers are covered by the ordinance. The EPSL ordinance still applies to any business who has an employee who performed at least two hours of work within the geographic boundaries of Oakland (including the Port of Oakland) after February 3, 2020.
Unlike many other local COVID-19-related sick leave ordinances, which only covered employers with 500 or more employees (because they were excluded from the federal Families First Coronavirus Response Act (FFCRA)), Oakland’s EPSL ordinance has always covered employers of all sizes. However, employers covered by the FFCRA are able to credit the total sick leave hours provided under the FFCRA against their sick leave hours obligation under the ordinance.
Small employers who employed fewer than 50 employees between February 3, 2020, through March 4, 2020, are still exempt from the ordinance, except for unregistered janitorial employers of franchisees associated with a franchisor or network of franchises where that franchisor or network employs more than 500 employees total.
Amount of Sick Leave
Employees who were employed prior to the December 31, 2020, expiration of the original ordinance had their leave banks calculated according to whether they were classified as full time or part time.
For employees whose leave banks are calculated under the revised EPSL ordinance, the calculations are as follows:
- Full-time employees (working at least 40 hours per week within the City of Oakland between January 1, 2021, through January 21, 2021, or at any point thereafter) are entitled to 80 hours of EPSL.
- For employees who work fewer than 40 hours per week between January 1, 2021, through January 21, 2021, and who continues to do so after January 21, 2021, their sick leave is an amount equal to the average number of hours the employee worked within the City of Oakland over 14 days during the period of January 1, 2021, through January 21, 2021 (based on the highest number of hours worked within the City of Oakland during such period).
- If an employee has worked for less than 14 days between January 1, 2021, through January 21, 2021, then once the employee has received remuneration for 14 days, the employer must provide EPSL in an amount equal to the number of hours the employee worked within the City of Oakland over the 14 days.
- The above methods also apply for determining the hours of sick leave for employees that began working after January 21, 2021.
An employer may credit the total number of EPSL hours provided prior to January 1, 2021, under the original ordinance, against their EPSL obligations under the revised ordinance. In other words, the revised ordinance doesn’t provide eligible employees any additional time; however, employees are able to access any unused EPSL hours they received in 2020 throughout the duration of the ordinance.
Qualifying Reasons for Use
The qualifying reasons remain the same as in the original ordinance, and allow an employee EPSL use who is unable to work or telework due to 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;
- The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.
- 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.
Rate of Pay
Employers must pay their employees at 100 percent of the employee’s normal hourly wages of any qualifying reason, subject to a $511 daily cap or $5,110 total cap.
Under the revised EPSL ordinance, employers may credit the total sick leave hours provided under the FFCRA or under California’s Supplemental COVID-19 Sick Leave (AB 1867).
The revised ordinance’s provisions regarding payout of accrued and unused EPSL upon layoff, exemptions, enforcement and posting requirements remains the same as in the original ordinance.
Employers should determine how much EPSL remains available to their employees going forward in 2021. For new hires, employers will need to apply the new calculation provided for in the revised ordinance.
Employers should also monitor Oakland’s website for any updated Frequently Asked Questions (FAQs) that may be released to provide additional guidance on the revised EPSL ordinance.
Bianca Saad, Employment Law Counsel/Subject Matter Expert, CalChamber
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