On May 12, 2020, the Oakland City Council adopted an emergency sick leave ordinance (“Ordinance” or “Emergency Paid Sick Leave”) that provides 80 hours of paid sick leave to workers for COVID-19 related reasons. The recent enactment of the federal paid sick leave provision of the Families First Coronavirus Response Act (FFCRA) applies only to companies with fewer than 500 employees. Notably this ordinance not only seeks to “bridge the gap” by creating mandatory paid sick leave for the employees of many larger employers not bound by the FFCRA, but it also includes additional requirements under Oakland’s existing paid sick leave law for those employers who may already be subject to the FFCRA. For more information about the FFCRA, please visit our blog post.
The ordinance also creates a Department of Workplace and Employment Standards which is charged with enforcement and is expected to promulgate rules and regulations on or after July 1, 2020. This article provides a summary of what we currently know about Emergency Paid Sick Leave.
Which Employers are Subject to Emergency Paid Sick Leave?
This ordinance applies to any business who has an employee who performed at least two hours of work within the geographic city boundaries (including the Port of Oakland) after February 3, 2020. Coverage is not limited to employers with 500 or more employees, however as discussed below, employers already covered under the FFCRA may credit the total sick leave hours provided under the FFCRA against their leave hours obligation under the Oakland Ordinance.
Which Employers are Exempted from Providing Emergency Paid Sick Leave?
The Emergency Paid Sick Leave ordinance exempts the following:
- Employers of health care providers or emergency responders;
- Employers that, after February 3, 2020, provide employees with the ability to accrue at least 160 hours of paid personal leave (which includes personal time off, sick leave, or vacation time). For this exemption to apply, each employee must have immediate access to at least 80 hours of leave after the effective date of the ordinance and any employee whose personal leave balance fell below 80 hours prior to May 12, 2020 will be given additional leave to bring their balance up to 80 hours;
- Employers that provide employees with immediate access to paid personal leave in the amounts at least equivalent to the requirements of the ordinance; and
- Employers with fewer than 50 employees between February 3, 2020 and March 4, 2020 (this excludes certain small franchisees where the franchisor employ more than 500 employees in the aggregate).
Who is eligible to take Emergency Paid Sick Leave under the Ordinance?
Employees who worked at least two (2) hours within the City of Oakland, including the Port of Oakland after February 3, 2020 are eligible for up to 80 hours of Emergency Paid Sick Leave. Notably, the Oakland ordinance makes specific reference to California Labor Code section 2750.3, which addresses whether a worker may be considered an independent contractor. Employers are reminded that Emergency Paid Sick Leave will apply to all workers who perform work for or through an employer, regardless of whether they are deemed to be “employees” unless they otherwise meet the requirements to be classified as an independent contractor under California law.
What are the qualifying COVID-19-realted reasons for Emergency Paid Sick Leave?
An employer must provide leave under the Ordinance upon the oral or written request of an employee that is unable to work or telework for one of the following COVID-19 related circumstances:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- 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;
- The employee is caring for a child whose school or place of care has closed, or whose childcare provider is unavailable, due to COVID-19;
- The employee is experiencing any other substantially similar condition specified by the federal Secretary of Health and Human Services in consultation with the Secretary of Labor and the Secretary of the Treasury.
- The employee must care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
- The employee must take time off work because the employee:
- Is at least 65 years old; and
- Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; or
- 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
- 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.
Can Employers Require Documentation from a Doctor?
No. An employer may not require a doctor’s note or other documentation for using Emergency Paid Sick Leave, unless it is to certify a health condition that puts an employee at heightened risk referenced above. However, the employee does not need to disclose their actual condition, only that they are at a heightened risk for serious illness or death if exposed to COVID-19.
What is the Amount of Emergency Paid Sick Leave that Must be Provided?
Employers must pay emergency sick leave based on whether an employee is full-time or part-time, which is determined by the number of hours an employee worked within the city of Oakland between February 3, 2020, and March 4, 2020, and at any point thereafter.
- Full-time employees – are considered employees who worked at least 40 hours per week over the period of February 3, 2020, and March 4, 2020, or at another hour requirement that their employer classifies as full-time. Full-time employees are immediately entitled to 80 hours of Supplemental Sick Leave.
- Part time employees – are immediately entitled to an amount of Supplemental Sick Leave equal to the number of hours the employee worked within the City of Oakland over 14 days between February 3, 2020, and March 4, 2020. The ordinance requires that these 14 days be the 14 days with the highest number of hours worked in Oakland.
What is the Rate of Pay?
Oakland requires all covered employers, including those already covered by the FFCRA, to pay their employees at 100 percent of the employee’s normal hourly wages for any qualifying reason, subject to a $511 daily cap and $5,110 cap in the aggregate. Employers must pay employees for leave they use under the ordinance no later than the payday for the next regular payroll period after the one in which the employee takes leave.
Can an Employer Offset Against the Amount of Emergency Paid Sick Leave Required?
If an employer has already provided paid leave for COVID-19-related purposes since March 31, 2020, beyond the employer’s regular or previously accrued leave policy, each hour may be offset against the 80-hour requirement. If an employer is already providing employees with leave pursuant to the FFCRA in an amount equal to or greater than what is required under the Ordinance, the employer is not required to provide any additional Emergency Paid Sick Leave.
Important Note for Oakland Employers: The amount of pay in the Ordinance goes above the requirements under FFCRA and employers should be aware that they will have to make up the difference in pay for part-time employees entitled to emergency paid sick leave at their regular hourly rate under the Oakland ordinance (but only two-thirds their regular rate under the FFCRA).
How Does Emergency Paid Sick Leave Interact with other Paid Leave Entitlements?
An employee may elect to use Emergency Paid Sick Leave before any other leave provided by an employer or leave required to be provided to the employee under Oakland’s existing paid sick leave law (Municipal Code Section 5.92.030). Employers cannot require employees to use other paid or unpaid leave, time off, or vacation time an employer provides before using this new benefit.
Are Employers Required to Payout Accrued Emergency Paid Sick Leave upon Layoff or Separation?
The Ordinance mandates that employers compensate employees who are laid off for their unused sick leave accrued pursuant to Oakland’s existing paid sick leave law. The Ordinance excludes any remaining Emergency Paid Sick Leave in an employee’s bank at the time of the layoff from this payout. Neither the existing law nor the new Ordinance provide a definition of “layoff.”
How long is Emergency Paid Sick Leave Effective?
The Ordinance is effective through December 31, 2020, unless extended by the Oakland City Council.
Are there any other Prohibitions Placed on Employers?
Employers may not require that an employee use Supplemental Sick Leave in increments greater than 1-hour. Employers are prohibited from discrimination and retaliation against an employee for exercising their rights under the Ordinance.
Are there Employer Notice Posting Requirements?
Yes. An employer must provide notice in a manner calculated to reach all employees, including, but not limited to, via electronic communication or a conspicuous posting at the workplace or in a web-based or app-based platform. Employers must provide notice in all languages spoken by more than 10% of employees. The City of Oakland is expected to publish and make available the mandatory notice and employers must provide this notice to employees within three (3) days of its release.
How will Emergency Paid Sick Leave be Enforced?
The same enforcement remedies available under Oakland’s existing paid sick leave law will apply to emergency paid sick leave enforcement. On or after July 1, 2020, the Department of Workplace and Employment Standards may issue rules and regulations to provide additional guidance.
State and local responses to the pandemic are ongoing and dynamic from day to day. Our compliance team continues to monitor legislation closely and will update this article accordingly as new legislation is released.
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