Seyfarth Synopsis: Last week, the San Francisco Board of Supervisors and the San Jose City Council enacted emergency ordinances to expand paid sick leave beyond that provided under the federal Families First Coronavirus Response Act. While San Francisco’s Public Health Emergency Leave ordinance awaits Mayor London Breed’s signature, Mayor Sam Liccardo has signed the San Jose COVID-19 Paid Sick Leave Ordinance, which became effective on April 7, 2020.

The Families First Coronavirus Response Act (FFCRA) Focuses on Smaller Employers

As we’ve noted (here, here, and here), the FFCRA requires employers with fewer than 500 employees to provide up to 80 hours of emergency paid sick leave to certain employees who are unable to work due to COVID-19 related reasons. As part of a growing trend, San Francisco and San Jose’s emergency ordinances attempt to close FFCRA coverage gaps by providing additional paid sick leave to employees not covered by the FFCRA.

The San Francisco and San Jose Ordinances Apply To Employers with 500 or More Employees And Permit Offsets

Covered Employers. The ordinances by the two Cities (the San Jose ordinance now effective and the San Francisco ordinance expected to be effective soon) require private employers with 500 or more employees to provide up to 80 hours of supplemental paid sick leave to employees who are unable to work as a result of the COVID-19 public health emergency. This supplemental leave will be available to eligible employees for immediate use. San Jose’s ordinance, however, deviates from San Francisco’s ordinance by also covering private employers with fewer than 50 employees.

What Can The Paid Sick Leave Be Used For. Generally, an eligible employee may use the supplemental leave granted by either ordinance if the employee cannot work because of one of these reasons:

  • The employee is experiencing symptoms of COVID-19 and seeking medical diagnosis.
  • The employee is subject to COVID-19 related quarantine or isolation by a government order, or is caring for someone subject to the same (including, in San Francisco, vulnerable populations who are recommended to self-isolate).
  • The employee has been advised by a health care provider to self-quarantine due to COVID-19, or is caring for someone subject to the same.
  • The employee is caring for a family member because school or day care is closed due to COVID-19.

Although both ordinances delineate similar situations for use of supplemental leave, San Francisco specifically limits an employee’s caring of other individuals to family members. However, San Francisco expands care to a family member (not necessarily a child) whose  caregiver becomes unavailable due to the public health emergency.

No Carryover. The ordinances disallow employees from carrying over any unused paid sick leave at the ordinances’ sunset dates, or from being paid for unused amounts of sick leave.

Offsets. Both ordinances allow offsets for paid time off that an employer already provided to its employees. Under the San Francisco ordinance, the amount of emergency paid sick leave an employer must pay will be reduced for every hour the employer allowed the employee to take paid leave or paid time off for COVID-19 related reasons, over and above the employee’s existing sick, vacation, and PTO banks, between February 25, 2020, and the ordinance’s enactment. Similarly, the San Jose ordinance provides an offset for some combination of paid personal leave available to employees as of the effective date of its ordinance on April 7, 2020.

The Cities Differ In Defining Eligible Employees, Calculating Payment, Setting Notice Requirements, and Providing Exemptions. 

Covered Employees. San Francisco construes “Employee” broadly as any employee—full-time, part-time, or temporary—who worked 56 or more hours in San Francisco, including telework, during the 365 days immediately preceding the effective date of the ordinance. On the other hand, San Jose broadly includes those who have worked at least two hours for their employers within the City.

San Jose Remote Workers Excluded. If employees can work from home, San Jose does not provide them these additional COVID sick leave benefits. San Jose further specifies that only employees who must leave their residences to perform Essential Work are covered.

Payment. San Francisco employers may calculate this additional COVID paid sick in the same manner they calculate sick time under the San Francisco paid sick leave laws. Meanwhile, San Jose models payment calculation after the FFCRA.

Notice Requirements. Employers doing business in San Francisco must closely observe the notice requirements set forth in the City’s ordinance. The San Francisco’s Office of Labor Standards Enforcement (“OLSE”) will post a notice on its website within seven days of the ordinance’s enactment. Thereafter, within three days, employers must provide the OLSE’s notice to its employees. To ensure the Notice can be reached by all employees, employers should

  • post the Notice in a conspicuous place at workplace, via electronic communications,
  • post the Notice on an employer’s web-based or app-based platform, and
  • provide the Notice in English, Spanish, Chinese, and any language spoken by at least 5% of the employees.

In addition, the Notice must include the amount of ordinance-provided paid sick leave that is available to the employee.

Meanwhile, San Jose, while not laying out specific notice requirements, asks employers to comply with any notice requirement established by the City’s Office of Equality Assurance.

Health Care and First Responder Exemptions. Under the San Francisco ordinance, employers of health care providers or emergency responders, as defined under the FFCRA, may elect to exclude eligible employees from receiving the ordinance-provided leave. Hospital employers may be exempted from the San Jose’s ordinance only if, between April 7, 2020 and April 21, 2020, the hospital operators provide their employees some form of paid personal leave at least equivalent to the paid sick time as required by the ordinance.

Other Considerations. Both Cities prohibit employers from conditioning leave upon employees finding replacement workers. San Francisco has a few more explicit limitations, including prohibiting employers from requiring employees to use other accrued time off before using the supplemental leave, and from asking employees for doctor’s notes or other documentation substantiating absences. San Francisco employers also cannot modify their PTO policies during the pendency of the emergency ordinance.

Sunset Dates. The San Francisco ordinance sunsets 61 days after enactment, unless the ordinance is extended. San Jose’s ordinance sunsets on December 31, 2020.

Penalties for Non-Compliance. The San Francisco ordinance specifically prohibits retaliation, discrimination, or any interference with the exercise of employees’ rights. A rebuttable presumption of retaliation arises if an employer takes an adverse action against an employee within 90 days of the employee engaging in a protected act or filing a complaint for violation of this ordinance. San Jose’s ordinance can be enforced in the same manner as its Minimum Wage Ordinance.