As you may recall, on January 26, 2021, Sonoma County revised and extended its COVID-19 paid sick leave ordinance. The urgency ordinance took effect immediately upon passage, and its expiration date was extended to June 30, 2021. However, the ordinance only applied to employers with 500 or more employees.
On February 9, 2021, Sonoma County’s Board of Supervisors adopted a new urgency ordinance (superseding the previously adopted ordinance) that applies to all employers in unincorporated Sonoma County, regardless of size (excluding federal, state or local agencies). The ordinance took immediate effect upon adoption.
Aside from expanding the scope of the ordinance to include employers of all sizes, the overall substance of the ordinance largely remains the same and will remain effective through June 30, 2021, unless the Board of Supervisors extends it.
A covered employee is a person who has worked for an employer for more than two hours within the geographic boundaries of unincorporated Sonoma County, regardless of immigration status.
Health care providers and emergency responders (as defined under the federal Families First Coronavirus Response Act (FFCRA)) are also covered by the ordinance.
One new ordinance change is that a leave request may be denied where (a) the request for leave is to care for an individual whose senior care provider or whose school/childcare provider is unavailable for COVID-19-related reasons; and (b) the employer makes a good faith determination that granting such leave would create a staffing shortfall such that operational needs require a denial of some or all of the employee’s request for leave.
Supplemental Paid Sick Leave Requirement
Full-time employees normally scheduled to work 40 hours per week or more must receive 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 prior six months.
These hours are in addition to any California-mandated paid sick leave, as well as any preexisting paid time off (such as vacation, sick and/or paid time off (PTO)) provided to employees prior to March 16, 2020, subject to a potential employer offset mentioned below. Employers cannot require an employee to use any other paid sick leave, vacation or PTO before using their supplemental paid sick leave under the ordinance.
The ordinance makes clear that these supplemental paid sick leave hours have already been accumulated by employees under either the now-expired FFCRA or under Sonoma County’s ordinance. The ordinance reinstates an employee’s supplemental paid sick leave time, to the extent they have not already exhausted their supplemental paid sick accruals. No additional time is provided under the ordinance.
Credits for Leave Provided Under Other Laws
An employer may credit the total COVID-19 paid sick leave hours already provided to an employee under the FFCRA, California’s Supplemental Paid Sick Leave (AB 1867), California Division of Occupational Safety and Health (Cal/OSHA) regulations and/or Sonoma County’s local ordinance as enacted August 18, 2020, (No. 6320), as well as any substantially similar state or federal COVID-19 paid sick leave legislation that may be enacted in the future, against the ordinance’s supplemental paid sick leave obligations.
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;
- 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.
Single Rate of Pay
Supplemental paid sick leave hours must be paid at no less than the employee’s regular rate of pay, regardless of the reason for leave (subject to a daily cap of $511 per day and $5,110 total). Unlike the FFCRA and other local ordinances, there is no distinction between an employee caring for themselves or for another individual.
For employers that already provided at least 80 hours of accrued paid sick leave benefits as of August 18, 2020, (when the ordinance originally took effect), 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 Sonoma’s ordinance may be deemed satisfied. To the extent accrued paid sick leave benefits afforded employees as of August 18, 2020, were less than 80 hours, or accrued leave benefits were less than 160 hours, an employer must provide supplemental paid sick leave to the extent of such deficiency.
Notice and Recordkeeping Requirements
Employers must provide notice to their 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. Sonoma County has released a sample notice available in English and Spanish for employers to use.
Employers must maintain a record of each employee’s name, hours worked and pay rate for at least three years.
Retaliation Prohibition and Enforcement
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 a violation of the ordinance 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.
Bianca Saad, Employment Law Counsel/Subject Matter Expert, CalChamber
CalChamber members can use the Local Minimum Wage, Paid Sick Leave and Other General Employment Ordinances chart on HRCalifornia. Not a member? See what CalChamber can do for you.