Bay Bridge Series: Oakland Enacts COVID-19 Supplemental Paid Sick Leave Ordinance

On May 12, 2020, Oakland joined the list of California localities that have enacted a law requiring supplemental paid sick leave for COVID-19 purposes, along with Los Angeles (City), Los Angeles County (Unincorporated), San Francisco, and San Jose, plus the statewide obligation for food sector workers under California Executive Order N-51-20. The requirements take effect immediately and will remain through December 31, 2020, unless the city extends the law's end date.

Covered Employers, Employees & Family Members: The law covers all private employers, including employers covered by the federal Families First Coronavirus Response Act (FFCRA). The ordinance creates an exemption from the ordinance's requirements, however, for "small" employers, i.e., "an Employer that Employed fewer than 50 Employees between February 3, 2020 through March 4, 2020." The "small" employer designation does not apply to franchisees associated with a franchisor, or a network of franchises, that collectively employ more than 500 employees, or to janitorial employers that have not complied with California Property Service Workers Protection Act registration requirements. Additionally, the ordinance allows employers of health care provider and/or emergency responder employees – both defined under the FFCRA regulations – to elect to exempt themselves from the Oakland ordinance if they keep information describing employee classifications exempted and not exempted, as well as information related to location(s) of the exempted employees and from which provisions of the law the employees are exempted.

Under the ordinance,

“Employee” means any person who qualifies as an employee entitled to payment of a minimum wage under the California Labor Code . . . and wage orders published by the California Industrial Welfare Commission provided that the person has performed work for remuneration for an Employer for at least two (2) hours after February 3, 2020 within the geographic boundaries of the City.

Like the other local emergency paid sick leave ordinances in California, the Oakland law references California Labor Code section 2750.3, better known as "AB 5," which details whether and how a worker may be considered an independent contractor.

The ordinance allows employers to enter into a written collective bargaining agreement (CBA) that waives the law's requirements in clear and unambiguous terms. The CBA must, however, satisfy various requirements under California's pre-existing paid sick leave law. For example, the "general" CBA exception requires the CBA to provide for: 1) wages, hours of work, and working conditions of employees; 2) paid sick, leave or time off; final and binding arbitration of disputes concerning paid sick/leave/time off days; 3) overtime premium wage rates; and 4) a regular hourly rate of pay not less than 30 percent more than the state minimum wage rate. At this time, it is unclear how the construction industry CBA exception will apply, as that exception was drafted to account for the state law and requires such an agreement to be entered into before January 1, 2015 or expressly waive state law requirements.

Under the ordinance, employees can use leave for themselves or to care for a family member, which, includes traditional family members such as a child, grandchild, grandparent, parent, sibling, and spouse.  A “family member” 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.

In many ways, the family member definition is broader than that contained in Oakland’s pre-existing paid sick leave ordinance, though it does not include a “designated person” for employees without a spouse or domestic partner.

Amount of Leave: Generally, the obligation to provide COVID-19 emergency paid sick leave (EPSL) does not apply to an employer that, after February 3, 2020, provides employees with the ability to accrue at least 160 hours of paid personal leave.  For this exemption to apply:

  • Each employee must have immediate access to at least 80 hours of leave after May 12 available for uses the law requires.  Any employee who used paid personal leave before the law's effective date and has fallen below 80 hours of accrued personal leave as of May 12, must be provided additional leave to bring their paid personal leave balance up to 80 hours, to be used for purposes the law requires; or
  • An employer must provide its employees immediate access to paid personal leave in amounts at least equivalent to what, and for the purposes, the law requires. To apply, the paid personal leave must have been in addition to any paid leave the employer was otherwise required to provide pursuant to a collective bargaining agreement, employment contract, or public policy.

Otherwise, if the exemption does not apply, the ordinance requires employers to provide 80 hours of COVID-19 EPSL to employees who worked at least 40 hours per week in Oakland from February 3, 2020 through March 4, 2020 or at any point thereafter, or who the employer classifies as full-time. Other employees must receive an amount of leave equal to the average number of hours they worked in Oakland over 14 days during the period of February 3, 2020 through March 4, 2020. Additionally, the law requires that the 14 days be the 14 days with the highest number of hours worked in Oakland. FFCRA-covered employers may, however, offset their Oakland leave obligation by FFCRA sick leave hours they provide.

Employees may elect to use COVID-19 EPSL before using any other leave the employer provides voluntarily or per the pre-existing Oakland paid sick leave ordinance.  Employers cannot require employees to use other leave before they use COVID-19 EPSL.

Covered Uses: All covered employers must immediately provide leave to employees who are unable to work or telework for the following reasons:

  1. Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. 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 due to concerns related to COVID-19;
  5. Employee is caring for their son or daughter if the school or place of care has been closed, or the child care provider is unavailable, due to COVID-19 precautions;
  6. Employee is experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury;
  7. Employee needs to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19; or
  8. 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 healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

Under the ordinance, employees may elect to use the leave in one-hour increments and intermittently.  Employers cannot require them to use leave in more than one-hour increments.

Requesting, Verifying & Documenting Absences: For foreseeable absences, the law says employees should provide notice of the need for use of the leave as soon as practicable. Employers can take reasonable measures to verify or document leave use. However, requiring a doctor’s note is not reasonable unless employees use leave because they have a condition a healthcare professional certifies puts them at a heightened risk of serious illness or death if exposed to COVID-19 (see reason 8(d) referenced above). Employees obtaining such certification need not disclose their condition.  The certification need only indicate they are at a heightened risk. Like the pre-existing paid sick leave ordinance, the emergency leave ordinance provides that employers cannot require employees to incur more than $5 in costs to demonstrate their eligibility. Note that the ordinance provides that employers cannot prevent access to or use of COVID-19 EPSL to obtain documentation they need for FFCRA reimbursement or tax credit purposes. Additionally, the ordinance expressly allows employees to certify their need for leave via virtual or telephonic healthcare provider appointments.

Payment for Leave: Employers must pay employees the same hourly rate with the same benefits, including health benefits, they normally earn, which cannot be less than the Oakland minimum wage. Payment for leave is limited at up to a maximum of $511 per day or $5,110 overall. Employers must pay employees for COVID-19 EPSL they use no later than the payday for the next regular payroll period after the one in which the employee takes leave, which cannot be more than 14 days after the employee takes leave.

Notice, Posting, and Recordkeeping: Within three days after the city publishes and makes available the mandatory notice, an employer must provide the 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.

Prohibitions: The law prohibits interfering with, restraining, or denying leave rights, and retaliating or discriminating against an employee for exercising protected rights. Additionally, employers cannot require employees to find a replacement worker when they use leave, and employees cannot waive the law's requirements (aside from via a CBA).

Enforcement: Until July 1, the city will enforce the ordinance.  This likely means that the City Administrator's Contracts & Compliance Division will enforce the ordinance, as it already enforces the pre-existing paid sick leave ordinance. From July 1 onward, the newly created Department of Workplace and Employment Standards will handle enforcement of this ordinance and other local employment laws. At this time, enforcement mechanisms remain unclear. The ordinance sets an ambitious timeline for resolving administrative complaints: acknowledge a claim within one week, strive to respond to and investigate within two weeks, and resolve within one month. However, the ordinance also says certain provisions in the preexisting paid sick leave ordinance apply for enforcement purposes, which includes a private right of action; yet, many of the provisions of the preexisting paid sick leave ordinance the emergency ordinance cites do not involve enforcement or remedies (e.g., recordkeeping, minimum standards) and/or touch on subjects the emergency ordinance itself covers (e.g., retaliation).

Other Notable Provisions: Per the ordinance, employers cannot reduce or eliminate contributions to employee health benefits while an employee is using leave. The ordinance says that employers cannot rely on U.S. Department of Labor rules, interpretations, or guidance when deciphering the ordinance unless the ordinance expressly permits the practice or the rules/guidance would further the ordinance's purpose. Given the ordinance will take effect immediately, and the federal FFCRA is obviously a strong influence, this could frustrate employers that will need some reference point to interpret the law. Most notable is a provision requiring an employer that lays off an employee to immediately cash out all accrued, unused paid sick leave under the pre-existing paid sick leave ordinance.

Next Steps: Employers with California operations find themselves in a familiar position: navigating an ever-expanding, and diverse, patchwork of paid leave obligations up and down the state. Unlike their experience navigating pre-COVID-19 mandatory paid sick leave laws, however, they have little to no time to breathe between new laws.  Because all these emergency paid sick leave laws have taken effect immediately, employers are not afforded any lead time to determine whether and how one law – let alone all of them – affect existing policies, practices, and operations.

In just a 35-day period, six major paid leave laws have become law in California. As a result, employers are strongly encouraged to consult counsel to help them during this tumultuous period.

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.