The COVID-19 pandemic caught most everyone by surprise–employers included–and it has hit nearly every industry hard. As the pandemic worsened, many employees needed to take time off to care for themselves, for family members who were sick, or for children whose schools had closed. As cases across the country rose and local municipalities issued stay-at-home orders, the federal government passed the Federal Families First Coronavirus Response Act (FFCRA), introducing an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law for employees affected by COVID-19. The FFCRA’s sick leave provision does not however cover employees in private-sector companies with more than 500 people, and it also provides exemptions for businesses with fewer than 50 employees.
While the FFCRA is a much-needed step in the right direction, some argue it does not go far enough. To fill coverage gaps in the FFCRA, several California cities—San Jose among them—have enacted their own paid sick leave laws.
As an employer within the San Jose city limits, how does all this affect you? And what do you need to know?
Explaining San Jose’s Emergency Ordinance
On April 7, the San Jose City Council passed the COVID-19 Paid Sick Leave Ordinance, which requires employers to provide up to 80 hours of paid leave to employees providing essential COVID-19 related services outside of their residences. The ordinance applies to employers who are not required—in whole or in part—to provide paid sick leave benefits under the federal FFCRA, and who are subject to San Jose’s business license tax or who maintain a facility in the city limits.
Under the City’s emergency sick leave ordinance, “essential” businesses that remain open during the stay-at-home mandate must provide full-time employees with at least 80 hours of sick leave. Part-time employees must be provided with sick leave equal to the number of hours worked on average over a two (2) week period. Employers who already provide employees with some combination of paid time off are only required to provide the amount of sick leave hours needed to bring the employee up to the total hours required. A recent opinion letter from the Director of the Office of Equality Assurance clarified that the minimum hours must be provided effective April 7, 2020, irrespective of any sick leave used by the employee before the ordinance’s effective date. Thus, a full-time employee who already had 80 hours of paid sick leave in her bank on April 7, 2020, would not be entitled to any additional time, but an employee who had used sick time previously, and who had only 54 hours of paid sick leave in her bank on that date, would receive another 16 hours of paid sick leave. The opinion letter explains that the additional 16 hours could only be used for the COVID-19 related reasons set forth in the Ordinance.
To use emergency sick leave provided under the ordinance, an employee must either be exhibiting COVID-19-related symptoms or be under an isolation or quarantine order; be caring for an individual with a suspected or confirmed case of coronavirus or who is under an isolation or quarantine order; or be watching a child whose school has been closed while the stay-at-home order is in place. The ordinance prohibits an employer from requiring an employee to find a replacement in order to take sick leave.
If the employees are using the sick time granted under this ordinance to care for themselves, they must be paid their regular rate of pay up to $511 a day or $5,110 total. If the sick time is used to care for another person, the employee must be paid two-thirds their regular pay rate, up to $200 a day or $2,000 total.
The ordinance does not specify penalties for noncompliance. Rather, it authorizes the San Jose Office of Equality Assurance to “implement and enforce” the ordinance.
The ordinance will expire on December 31, 2020, and any unused sick leave provided under the ordinance will no longer be available to the employee at that time.
Given how quickly this ordinance developed—and the coronavirus pandemic itself—employers did not have a chance to craft procedures and practices to implement the law. While there is an end date for the ordinance, there is no telling when the pandemic will end. One hopes stay-at-home orders will be eased soon. In the meantime, employers should consult an employment law attorney to determine how to comply with the new ordinance.