Local COVID-19 Paid Sick Leave Ordinances Fill Gap Left By FFCRA Expiration

CATEGORY: Special Bulletins
CLIENT TYPE: Nonprofit, Private Education
PUBLICATION: LCW Special Bulletin
DATE: Feb 10, 2021

In the spring of 2020, in response to the passage of the Families First Coronavirus Response Act (FFCRA), which provided leave and benefits for COVID-19-related reasons to eligible employees of employers with less than 500 employees, many California cities and counties passed supplemental COVID-19 paid sick leave ordinances to require employers with 500 or more employees to provide leave and benefits comparable to those under the FFCRA to eligible employees.

Since the FFCRA expired on December 31, 2020, some cities and counties are extending or expanding their supplemental paid sick leave ordinances.  As set forth below, the cities of Oakland and San Jose, and the County of Los Angeles, have local ordinances in place that apply to both smaller and larger employers.  Many other jurisdictions are considering enacting similar ordinances, so it is important to check current laws in effect for the city and county in which your school or nonprofit organization is located.

1.            Oakland Emergency Paid Sick Leave Ordinance

The City of Oakland extended its Emergency Paid Sick Leave Ordinance through the end of the City’s COVID-19 Emergency Declaration, and its ordinance applies to employers with 50 or more employees.  The ordinance and the FAQs related to the ordinance are available here.

Under Oakland’s ordinance, eligible employees must be allowed to use up to 80 hours of Emergency Paid Sick Leave (the leave is pro-rated for part-time employees as set forth in the ordinance) for the same reasons provided under the FFCRA, and for any of the following additional reasons:

  • To enable the employee to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19.  A “family member” includes traditional family members, such as a child, grandchild, grandparent, parent, sibling, and spouse, and also includes an individual to whom the employee is responsible for providing or arranging care and any individual whose close association is the equivalent of a family member); or
  • To take time off work because the employee:

a. Is at least 65 years old;

b. Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease or weakened immune system;

c. 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

d. Has any condition certified by a health care professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

The Oakland ordinance requires all covered employers to pay their employees Emergency Paid Sick Leave at 100 percent of the employee’s normal hourly wages for any qualifying reason, subject to a $511 daily cap and $5,110 total cap.

The ordinance allows employers to take reasonable measures to verify or document that an employee’s Emergency Paid Sick Leave is lawful, though requiring a doctor’s note is unreasonable unless an employee uses leave because the individual has a healthcare-professional-certified condition that puts the employee at a heightened risk of serious illness or death if exposed to COVID-19.  Additionally, employers cannot require an employee to incur expenses that exceed $5.00 to demonstrate their eligibility for Emergency Paid Sick Leave.

In the event of a layoff, the ordinance further requires Oakland employers to cash out sick leave the employee has under Oakland’s Paid Sick Leave (Ordinance 5.92.030) of up to the 72-hour cap immediately upon separation.

There are specific posting requirements under the Oakland Emergency Paid Sick Leave Ordinance, and the poster can be accessed here.

Employees who have exhausted Emergency Paid Sick Leave provided by the FFCRA are not eligible for additional leave under the Oakland Emergency Paid Sick Leave Ordinance.

2.            Los Angeles County Supplemental Paid Sick Leave Ordinance

On January 26, 2021, the County of Los Angeles passed an ordinance requiring all employers in unincorporated parts of the County to provide supplemental COVID-19-related paid sick leave retroactive to January 1, 2021.  A map of the unincorporated areas of Los Angeles County is accessible here.  The County had a Supplemental Paid Sick Leave ordinance in effect last year, but it was only applicable to employers with 500 or more employees.

The ordinance largely tracks the expired FFCRA, but a qualifying reason for leave includes an employee being subject to a federal, state, or local quarantine or isolation order related to COVID-19 because they are at least 65 years old or have a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened immune system.

Full-time employees receive a maximum of eighty (80) hours of paid leave under the ordinance, and part-time employees receive a pro-rated amount as calculated under the ordinance.  The maximum amount of paid leave is $511 per day or $5,110 in total.  If an employee has previously exhausted available FFCRA leave, the employee is not entitled to additional leave under the ordinance.

The ordinance is accessible here and the extension is accessible here.

3.            San Jose Emergency Paid Sick Leave Ordinance

The City of San Jose has also extended and expanded its COVID-19 Sick Leave Ordinance.  Information about the San Jose ordinance is accessible here.  The ordinance applies to all employers who maintain a facility in the City, and provides Emergency Paid Sick Leave largely consistent with the terms of the expired FFCRA.  The ordinance entitles full-time employees with eighty (80) hours of leave (pro-rated for part-time employees as calculated by the ordinance), for reasons consistent with the expired FFCRA.  Employees using sick time to care for themselves must be paid their regular rate of pay up to $511.00 per day, not to exceed an aggregate of $5,110.00.  Employees using sick time to care for another person must be paid at two-thirds (2/3) of their regular rate of pay up to $200.00 per day, not to exceed an aggregate of $2,000.00.  The revised ordinance allows employers to satisfy their Emergency Paid Sick Leave obligations under the ordinance via existing paid leave benefits; to the extent the amount of employer-provided leave is less than what the law requires, employers must provide additional leave.

Liebert Cassidy Whitmore attorneys are available to assist schools and non-profit organizations that have any questions about local sick leave ordinance in their area.

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