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.
On September 1, 2020, Sacramento County, California, enacted the Worker Protection, Health, and Safety Act of 2020, which obligates employers to provide supplemental paid sick leave (SPSL) and to implement certain safety practices and protocols, and grants employees the right to refuse work under certain conditions. Although the ordinance took effect on October 1, 2020, employers need not implement the requirements of the law until 15 days after the effective date—i.e., October 16, 2020. Currently, the law is set to remain in effect through December 31, 2020.
The new law applies in the county's unincorporated areas, meaning it will not apply in the City of Sacramento, which enacted its own law months ago. Businesses already complying with the citywide law that must also comply with the new countywide law should note that the new county law is nearly identical to the city's law. However, this fact might provide little solace, given the new county law is different from a statewide law that for many employers became operative a few weeks ago, on September 19, 2020, and from continued SPSL obligations for employers with food sector workers.
Covered Employers, Employees & Family Members: The ordinance applies to employers with 500 or more employees nationally. Under the law, covered employees are people who work in Sacramento County's unincorporated areas for an employer and are employees per California law.1 However, an employer of an employee who is a health care provider or emergency responder may exclude those employees from the ordinance's requirements. Notably, there is no potential exception for companies with unionized workforces.
For determining who constitutes a "family member" for whom employees may use SPSL, the ordinance uses the definition in California's generally applicable paid sick leave law, the Healthy Workplace Healthy Family Act, i.e., a child, grandchild, grandparent, parent, sibling, spouse or domestic partner.
Amount of Leave: SPSL is in addition to any other paid sick leave, paid time off, or vacation time an employer provides by statute, policy, or collective bargaining agreement (CBA). Significantly, an employer cannot require an employee to use other accrued paid sick leave, paid time off, or vacation time before using SPSL.
Employers must provide 80 hours of SPSL to full-time employees, i.e., those who work 40 or more hours per week or who an employer classifies as full-time. The ordinance considers other employees "part-time," who are entitled to an amount of SPSL hours equal to the number of hours they work on average over a two-week period. To calculate this amount, employers use the number of hours the employee worked each week during the six months immediately preceding the law's effective date, multiplied by two.
The ordinance contains two offset provisions that may reduce the amount of SPSL an employer needs to provide to its employees. First, if an employer granted additional paid sick leave – beyond any paid sick leave, paid time off, or vacation time afforded an employee by statute, policy, or CBA – since March 19, 2020, specifically for use for COVID-19-related matters the ordinance describes, it can credit those hours against the number of SPSL hours the law requires. Second, if the employer is covered by California Executive Order N-51-20 – COVID-19 paid sick leave for certain food sector workers – it may use those leave hours as an offset.
Covered Uses: An employee who is unable to work or telework may use SPSL for the following purposes: 1) employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19, or is caring for a family member who is quarantined or isolated due to COVID-19; 2) a health care provider advises an employee to self-quarantine due to COVID-19 or the employee is caring for a family member who is so advised; 3) employee chooses to take off work because the employee is over the age of 65 or is considered vulnerable due to a compromised immune system; 4) employee is off work because the employer it works for or a specific work location temporarily ceases operation due to a public health order or other public official’s recommendation; 5) employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or 6) employee is caring for a minor child because a school or daycare is closed due to COVID-19.
Requesting & Verifying Leave: For foreseeable absences only, an employer may require the employee to follow reasonable notice procedures. If an employer requests, an employee must provide the basis for requesting SPSL, but a doctor's note or other documentation is not required.
Payment: Generally, an employer must pay SPSL at the employee’s regular rate of pay. However, for an employee who uses SPSL to care for a family member, the employer may pay two-thirds of the employee’s regular rate of pay up to a maximum of $200 per day and $2,000 overall. For the other covered uses, the maximum amount an employer must pay is $511 per day or $5,110 overall; Note that when employment ends, employers need not cash out unused SPSL.
Prohibitions: An employer cannot:
- Request an employee waive a right under the law (any such waiver is contrary to public policy, void, and unenforceable);
- Require an employee to find a replacement worker as a condition of using SPSL;
- Issue any discipline or attendance points based on a no-fault attendance policy for an employee’s SPSL use; and/or
- Discharge, discipline, discriminate against, retaliate against, or reduce the compensation of any employee seeking to exercise the employee’s rights under the law or participating in proceedings related to the law.
Enforcement: Currently, which county agency, and how the county, will enforce the ordinance is not clearly addressed. Unlike the City of Sacramento law, which expressly references one pre-existing statute on enforcement, the county law references an entire chapter.
What is clear, however, is that criminal penalties will not attach to a violation, and employees can file a lawsuit. Employees can file suit within one year of a violation, but only after they provide written notice to the employer of the provision alleged to have been violated and all facts supporting the alleged violation and give the employer a 15-day period measured from receipt of that notice to cure any alleged violation. Assuming a lawsuit proceeds, and an employee prevails, the court can award actual damages, punitive damages, reinstatement, front and back pay, other legal or equitable relief, as well as attorneys' fees and costs.
Employers Receiving Financial Assistance from County: Finally, any employer that receives financial assistance from the county through any program designed to provide financial assistance to businesses due to COVID-19 must certify that it complies with the ordinance as a condition of receiving funds. An employer that is determined to have violated the law must refund any such financial assistance it received.
Next Steps: Employers, if necessary, need to review and revise their policies and procedures to comply with this new countywide paid leave requirement. This is not a lot of time, particularly for employers with operations throughout the state, who could additionally be trying to comply with statewide requirements plus up to 10 other local supplemental paid sick leave ordinances. The new countywide law signals that, notwithstanding a statewide requirement, local jurisdictions might opt to pursue their ordinance, increasing compliance challenges for employers with Golden State operations.
1 The law references California Labor Code section 2750.3 ("AB 5"). However, that statute was repealed as of September 4, 2020, and replaced by numerous statutes (Cal. Lab. Code §§ 2775-2787) created by AB 2257 (2020).