Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On December 23, 2020, San Francisco Mayor London Breed signed the latest PHELO reenactment measure.
In normal times, December 31 for employers is the final day before a host of new laws might take effect. This year, however, is anything but normal, so New Year’s Eve takes on new meaning; it’s the last scheduled day for emergency paid sick leave (EPSL) and emergency paid family leave (EFMLEA) provisions under the federal Families First Coronavirus Response Act (FFCRA), in addition to the expiration date for EPSL provisions under two California statewide laws and 9 of 11 local ordinances. As they tick more days off their 2020 calendars, employers with California operations wonder whether, and which, EPSL laws might continue into 2021.
Federal Law: Although there have been various legislative proposals made in 2020 to extend the federal FFCRA’s duration, this does not look likely and the issue does not feature in the COVID-19 relief package recently agreed to by federal legislative branch officials. Therefore, employees working for employers with 499 or fewer employees will no longer have the right to EPSL or EFMLEA after December 31, even if leave started prior to that date.
California Law: Although pre-filing bills for the upcoming legislative session began on December 7, 2020, to date, no California legislator has submitted a proposal to extend the duration of either the food sector worker or generally applicable EPSL laws, both of which contain language saying their duration will extend if the federal FFCRA does and that such extension will be for the same period the federal law is extended. The state legislature does not come back into session until January 4, 2021, after the laws expire.
Local Law: Two local ordinances do not have a hard end date, so they will continue into 2021. Under Long Beach’s COVID-19 Paid Supplemental Sick Leave Ordinance, every 90 days the city manager must report about the law’s effectiveness and whether it remains necessary, and, based on the report, the City Council determines when the law will end. The last report was submitted on September 29, 2020, and recommended continuing the ordinance. The Los Angeles Mayor’s Order re: Supplemental Paid Sick Leave Due to COVID-19 remains in effect until two calendar weeks after the COVID-19 local emergency expires.
Additionally, cities and counties have been extending, or discussing extending, their laws. The first jurisdiction to extend its law was San Mateo County. On December 8, the Board of Supervisors enacted an urgency ordinance extending the Emergency COVID-19 Paid Sick Leave Ordinance through June 30, 2021.
One week later, on December 15, four other jurisdictions enacted, or took steps toward enacting, extension and/or expansion measures:
- The Sacramento County Board of Supervisors enacted a regular ordinance extending the Sacramento County Worker Protection, Health and Safety Act of 2020 through March 31, 2021. As a regular ordinance, it takes effect 30 days after adoption, i.e., January 14, 2021. Because the ordinance does not include a retroactivity provision, there will be an approximate two-week period during the first two weeks of 2021 when the ordinance is technically not in effect, leaving an open question as to whether the law will be considered applicable during this period.
- The Sacramento City Council and mayor enacted an urgency ordinance extending through March 31, 2021 the Worker Protection, Health and Safety Act.
- The San Francisco Board of Supervisors adopted an urgency ordinance reenacting the Public Health Emergency Leave Ordinance for an additional 60 days. The mayor has 10 days to sign, veto, or return unsigned the measure. The mayor is expected to sign the bill, which will take effect retroactively to December 13, 2020, meaning this latest reenactment should run through February 10, 2021 unless reenacted again.
- The San Jose City Council voted in favor of having staff draft two proposals. The first would base an extension of the COVID-19 Paid Sick Leave Ordinance on any federal FFCRA extension. As noted above, an FFCRA extension is improbable, so employers should expect that the second proposal will go before the council, likely on January 5, 2021: a new standalone ordinance that will apply to all employers – rather than to those with 500 or more employees – that will last through June 2021.
Notably, none of the extension bills requires an employer to provide a new bank of leave; instead, they simply continue, for a limited time, the obligation to provide COVID-related leave when needed. To date, the only law that hypothetically might require more leave is San Jose’s because it is considering expanding its law. Because a draft is not yet available, however, it remains to be seen what obligations such a new law might contain and how employers could meet those obligations.
At the time of publication, legislative websites and agendas for Oakland, Los Angeles County, Santa Rosa, and Sonoma County do not show a proposal to extend or expand their laws into 2021. Employers with operations in these jurisdictions should monitor these sites for potential developments in the remaining days of 2020 or early days of 2021.
Final Thoughts: Even if employers do not face any ongoing EPSL obligations in 2021, if they use a calendar year for “regular” paid sick and safe time (PSST) purposes, the clock restarts concerning employees’ ability to use leave. This applies only in places that allow companies to implement an annual use cap (whereas in some places, like San Francisco and Oakland, the only limit is how much leave an employee has accrued). PSST obligations exist statewide, as well as generally in Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica, and in Long Beach and Los Angeles for certain hotel (or related) employers.1 Notably, during the COVID-19 pandemic, enforcement agencies in many of these places expanded reasons employees can use leave via emergency rules or interpretations to cover COVID-19-related absences, such as for school closures or for employees who are part of a vulnerable population. Additionally, California employers will need to consider potential leaves and reasonable accommodations obligations under federal law (e.g., ADA), state law (e.g., CFRA and kin care), or local law (e.g., family friendly workplace or COVID-specific ordinances). Happy New Year?
1 Though Santa Monica has a law applicable to/in hotels, compliance obligations are the same as the general law, which is different than, e.g., Los Angeles, where there are two different laws.