January 21, 2022

Volume XII, Number 21

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Additional Paid Leave for Some San Jose Employees Under the COVID-19 Paid Sick Leave Ordinance

In an effort to fill the gap left by the federal Families First Coronavirus Response Act (FFCRA), the San Jose City Council unanimously passed the COVID-19 Paid Sick Leave Ordinance (“Ordinance”) on April 7, 2020.  The Ordinance requires covered businesses operating in San Jose to provide Covered Employees with at least 80 hours of paid leave for uses related to COVID-19.

San Jose Mayor Sam Liccardo signed the Ordinance and its requirements are now in effect.  As such, businesses operating in San Jose must act quickly to comply with the Ordinance.

The questions and answers below are designed to address whether the Ordinance applies to your business and, if so, what you will need to do to comply with the Ordinance.

What Benefits Are Provided Under the Ordinance?

  • Full-time employees are entitled to eighty (80) hours of paid sick leave; and

  • Part-time employees are entitled to sick leave hours equal to the number of hours the employee works on average over a two (2) week period.

The amount of leave available for part-time employees will be determined based on the average number of hours the employee worked, per day, during the six months preceding April 7, 2020.  If a Covered Employee has worked for a covered employer for less than six months, the employer may calculate the available leave based on the average hours the employer expected the employee to work at the time of hire.

What Businesses Are Covered by the Ordinance?

The Ordinance is designed to cover employers not subject to the FFCRA’s requirements.  This includes:

  1. Employers with 500 or more employees; and

  2. Employers with less than 50 employees that were not previously required to comply with FFCRA.

If a business falls within the FFCRA, it does not need to also comply with the Ordinance.

Is the Ordinance Limited to Businesses Operating in San Jose?

Yes.  The Ordinance applies to companies that operate in the City of San Jose or directly or indirectly control an employee’s wages and working terms and conditions and are subject to the San Jose Business License Tax Chapter 4.76 of the City’s Municipal Code.

What Employees Are Covered by the Ordinance?

The Ordinance applies to individuals who:

The Ordinance does not apply to employees who are able to work from home, whether or not their employer is an Essential Business and whether or not the employee is performing Essential Work.

Whether a worker is considered an employee for purposes of the Ordinance will be determined by California Labor Code 2750.3, which presumes any worker is an employee unless an employer can demonstrate otherwise.  As a result, some independent contractors may qualify as Covered Employees under the Ordinance.

For What Purpose May a Covered Employee Use Leave Under the Ordinance?

Covered Employees may only use leave provided under the Ordinance if:

  • 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 experiences symptoms of COVID-19 and is seeking medical diagnosis; or

  • The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

At What Rate Is Sick Leave Paid Under the Ordinance?

Employees who take leave under the Ordinance must be paid at their regular rate of pay.

Is There a Cap on Wage Replacement Benefits Under the Ordinance?

Yes.  Similar to FFCRA, the Ordinance provides daily and aggregate caps on the benefit.  These caps are tied to whether the employee uses the benefit for their own care or whether the employee uses the benefit to take time off to care for someone else.

  • For Employees who take leave under the Ordinance for their own care, the daily wage replacement is capped at $511 a day, up to a maximum benefit of $5,110.

  • For employees who take leave under the Ordinance to care for others, the daily wage replacement is capped at $200 a day, up to a maximum benefit of $2,000.

If an Employer Already Provides a Combination of Other Paid Leave That Equals Leave Required Under the Ordinance, Does the Employer Need to Provide Additional Leave?

No.  Employers that provide some combination of paid leave that is at or above the leave required under the Ordinance do not need to comply with the Ordinance.

If a covered employer currently provides a combination of paid leave that is less than the leave required by the Ordinance, the employer must provide additional paid leave in the amount of the difference between the paid leave already offered and the paid leave required by the Ordinance.   

Can I Require an Employee Who Requests Leave Under the Ordinance to Find a Replacement?

No.  Covered employers cannot require an employee to find a replacement as a condition of using leave under the Ordinance.

Does the Ordinance Apply to Hospitals?

Yes.  However, employers that operate hospitals will be exempt from the Ordinance if, within two weeks of the effective date, the employer provides its employees with some combination of paid personal leave at least equivalent to the paid sick time required under the Ordinance.  If the hospital provides paid personal leave less than that required by the Ordinance, the hospital must comply with the Ordinance.

How Long Will the Emergency Ordinance Be in Effect?

The Ordinance is in effect from its adoption, April 7, 2020, to its sunset date, December 31, 2020.

Who Will Enforce the Ordinance?

The Ordinance rests enforcement authority in San Jose’s Office of Equality Assurance.  The Office is empowered to establish requirements related to the ordinance.

CONCLUSION

The San Jose Ordinance is yet another government effort in response to the COVID-19 crisis.  Employers must continue to aggressively monitor the rapidly emerging municipal, state, and federal laws and ensure compliance.

Because the Ordinance was enacted quickly to address the COVID-19 crisis, there will likely be unanticipated issues that may arise concerning interpretation, applicability, and enforcement of its provisions.  As such, it is important that employers consult with counsel to receive assistance with interpreting the nuances of the Ordinance and to ensure compliance with any other COVID-19-related ordinances.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 107
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About this Author

Babak G. Yousefzadeh Partner Sheppard Mullin San Francisco, Labor and Employment Counseling ,Litigation ,Wage and Hour Class Actions
Partner

Babak Yousefzadeh is a partner in the Labor and Employment Practice Group in the firm's San Francisco office.

Areas of Practice

Babak represents employers in a full range of employment law matters, with a focus on litigation and class actions. Babak also specializes in litigation avoidance counseling. His experience includes advising and litigation on matters involving all forms of discrimination, harassment, retaliation/whistleblower issues; breach of contract disputes; wrongful termination claims; wage and hour issues; independent contractor status;...

415-774-3191
Brooke Purcell Labor Employment Attorney
Partner

Brooke Purcell is a partner in the Labor and Employment Practice Group in the firm's San Francisco office.

Areas of Practice

Brooke takes a pragmatic approach to litigation that balances the need for a strong defense with business realities. Her practice focuses on defending employers in federal and state courts and before administrative agencies against claims of wage and hour violations, discrimination, harassment, retaliation, and wrongful termination. She also represents employers in wage and hour class actions and PAGA claims. Her clients range from...

415.774.2939
Peter Y. Lee Labor & Employment Sheppard Mullin San Francisco, CA
Associate

Peter Y. Lee is an associate in the Labor and Employment Practice Group in the firm's San Francisco Office. 

Areas of Practice

Peter represents employers in all aspects of employment-related matters. His practice includes defending employers against claims such as discrimination, harassment, retaliation, wrongful termination, and wage and hour disputes.

Prior to joining Sheppard Mullin, Peter focused his practice on labor-related matters. He represented a countless number of public agency and non-profit employers against unfair labor practices. In...

415.774.2961
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