On April 7, 2020, San Francisco, California and San Jose, California passed emergency ordinances to expand paid sick leave and emergency family medical leave benefits. The ordinances cover gaps under federal law by expanding leave benefits under the federal Families First Coronavirus Response Act (the Act), which is limited to employers with fewer than 500 employees, to employers with more than 500 employees. Under the ordinances, employers must provide to each employee paid sick time to the extent that the employee is unable to work or telework because:
- The employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19.
- The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health care provider.
- The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis.
- The employee is caring for a minor child because a school or daycare is closed due to COVID-19.
The San Francisco ordinance further provides paid sick leave to employees experiencing any other substantially similar condition specified by the local health officer, or under section 5102(a)(6) of the Act, by the United States Secretary of Health and Human Services.
The new ordinances entitle full-time employees to 80 hours of paid leave and part-time employees to sick leave hours equal to the number of hours that the employee works, on average, over a two-week period. The two-week period is calculated by the average number of hours the employee worked per day during the six months immediately preceding the effective date of the ordinance. If an employee has worked for the employer less than six months, then the employer will calculate the amount of sick leave used based on the average hours the employee was expected to work at the time they were hired. The ordinances further provide that employees can use the paid sick leave immediately for the purposes described above, regardless of length of employment with the employer.
Though both ordinances greatly expand employee paid sick and family leave benefits, they have four key differences:
- Under the San Francisco ordinance, requirements may be waived in a collective bargaining agreement provided that the waiver is specific and unambiguous, while the San Jose ordinance does not provide an exemption for workers subject to a collective bargaining agreement.
- Under the San Francisco ordinance, the emergency leave must be made available to employees in addition to any existing paid sick leave policies (which cannot be modified except to add additional paid leave), while the San Jose ordinance does not apply to employers that provide employees, on the effective date of the ordinance, with some combination of paid personal leave at least equivalent to 80 hours.
- The San Francisco ordinance does not cap the amount paid in supplemental sick leave, while the San Jose ordinance limits sick leave payments to $511 per day and $5,110 in the aggregate if employees take sick leave to care for themselves and $200 per day and $2,000 in the aggregate if employees take sick leave to care for another person.
- The San Francisco ordinance requires employers to post a notice within three days after the city makes a sample notice available, whereas San Jose does not currently require a notice to be posted but provides that the city may require that in the future.
The San Francisco Ordinance is to remain in effect until 61 days after enactment or when the public health emergency ends, whichever occurs first. The San Jose ordinance is to remain in effect until December 31, 2020.
Employers with employees in San Francisco or San Jose should consult with their Reed Smith attorney to ensure they are complying with the new ordinances.