September 21, 2020

Volume X, Number 265

September 18, 2020

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The City of Oakland Passes Supplemental Emergency Paid Sick Leave

Following in the footsteps of the cities of Los AngelesLos Angeles CountySan Francisco, and San Jose, the City of Oakland adopted a new supplemental emergency sick leave ordinance on May 18, 2020.  The ordinance takes effect immediately and is intended to apply to employers who are not covered by the Families First Coronavirus Response Act (“FFCRA”).

The ordinance requires employers to provide 80 hours of Emergency Sick Leave (“ESL”) to full-time employees.  Part-time employees must be provided an amount of ESL equal to the average number of hours they work in a two-week period.

Employers do not have to provide the ESL if:

  1. The employer had less than 50 employees  February 3, 2020, through March 4, 2020. However, some janitorial and franchisee employers are covered even if they had less than 50 employees during that time frame.
  2. The employer, after February 3, 2020, provided employees with the ability to accrue at least 160 hours of paid personal time but only if the employee has immediate access to at least 80 hours of that leave. If the employee’s balance under that personal plan is less than 80 hours, the employer must provide additional personal time sufficient to bring the employee’s balance to 80 hours.
  3. The employer immediately allows employees to use 80 hours of paid personal time off for the same reasons as ESL can be used where the employer was not obligated to provide that personal time by a collective bargaining agreement, contract, or policy.

Employees may use ESL for the following reasons when the employee is unable to work or telework:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  5. The employee is caring for the employee’s child because the child’s school or place of care has closed due to COVID-19 precautions;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

In addition, ESL may be used when the employee:

  1. Is at least 65 years old;
  2. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. 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
  4. Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Like FFCRA and similar ordinances, payment for leave is capped at a maximum of $511 per day, or $5,110 in total.

Upon the City publishing an ESL notice, employers are required to post the notice, make it available on an intranet, or otherwise provide it to all employees.

In an unusual twist, the ordinance also requires employees who are laid off to be paid for their unused  Paid Sick Leave upon termination.

The ordinance expires on December 31, 2020, unless extended.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 142

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About this Author

Jeanette R. Youngblood
Of Counsel

Jeanette R. Youngblood is Of Counsel in the Sacramento, California office of Jackson Lewis P.C. She provides advice and counsel to private and public sector employers on issues related to employment law, including disability management and administration of leave entitlements.

In addition, Ms. Youngblood has litigated extensively in federal and state courts representing both plaintiffs and defendants. Her litigation experience on behalf of public agencies includes writ proceedings and administrative appeals. Ms. Youngblood...

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