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 8, 2020, the Sacramento County Board of Supervisors passed a regular ordinance to extend the effective date of the Worker Protection, Health, and Safety Act of 2020 through March 31, 2021.
On June 30, 2020, the Sacramento City Council enacted the Sacramento Worker Protection, Health, and Safety Act. This ordinance, which becomes operative on July 15 and sunsets on December 31, 2020,1 addresses various workplace concerns in light of the COVID-19 pandemic. The ordinance has six particularly notable provisions: 1) Employer Safety Practices and Protocols, 2) Right to Refuse Work Under Certain Circumstances, 3) Supplemental Paid Sick Leave, 4) Enforcement, 5) Conditions on City Financial Assistance, and 6) No Waiver of Rights. Each of these provisions are discussed below.
Employer Safety Practices and Protocols: Under this provision, covered employers are required to implement specific safety practices and protocols at employment sites:
- Daily cleaning and disinfection of high-touch areas in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;
- Formalized cleaning protocols for all other areas of an employment site;
- Formalized protocols for responding to the discovery that a person with a confirmed or probable case of COVID-19 has been at the employment site;
- Ensuring employees have access to regular handwashing with soap, hand sanitizer, and disinfectant wipes;
- Cleaning of common areas (e.g., break rooms, locker rooms, dining facilities, restrooms, conference rooms, and training rooms) daily and between shifts;
- Providing face coverings for employees to wear during their time at the employment site, mandating the use of face coverings while at the employment site in accordance with the CDC guidelines and subject to exceptions, and establishing protocols to ensure proper physical distancing; and
- Providing employees with written notice of these required practices and protocols in English and any other language spoken by at least 10 percent of the employees at the employment site.
For employees working at sites that are not owned, maintained, leased, or controlled by their employer, an employer is not in violation of requirements 1, 2, and/or 5 if it takes steps to contact the entity that owns, maintains, leases, or controls the site and encourages compliance with the required safety practices and protocols.
Right to Refuse Work Under Certain Circumstances: An employee may refuse to work for an employer if the employee reasonably believes that the employer is in violation of one or more of the seven specified safety practices and protocols listed above, and provides the employer with notice of the alleged violation(s).
Additionally, the city may investigate whether an employer violated a required safety practice or protocol, as alleged by an employee. If after conducting its investigation, however, the city finds that the employer was not in violation of a required safety practice or protocol, or if the employer provides the city with proof that it has cured the violation, the employee who made the allegation no longer has the right to refuse to work.
Supplemental Paid Sick Leave (SPSL): Employers must provide 80 hours of SPSL to full-time employees. Click here for a comprehensive summary and analysis of this provision.
Enforcement: Notably, retaliation is the only private right of action available to employees for an employer’s violation of any of the provisions in the ordinance, and the statute of limitations for such actions is one year. Moreover, employees cannot file suit until after they have provided their employer with written notice of the alleged violation(s) and all facts supporting the alleged violation(s), and allowed their employer 15 days from the receipt of the written notice to cure the alleged violation(s). If 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, and attorneys’ fees and costs.
The ordinance provides limited information regarding administrative enforcement. Based on this limited information, administrative enforcement will fall to the city attorney or another department. The administrative penalty for a violation of the ordinance will likely be $100 to $999.99 per violation, with each day a violation continues to occur constituting a separate violation.2
Conditions on City Financial Assistance: Employers that receive financial assistance from the city through any program designed to provide financial assistance to businesses due to COVID-19 must certify compliance with the ordinance as a condition of receiving funds. Employers found to have violated the ordinance must refund all such financial assistance received.
No Waiver of Rights: Employers cannot request that employees waive any rights provided under the ordinance. Such waivers are contrary to public policy, void, and unenforceable.
Covered Employers and Employees: This ordinance defines an “employer” as “a person that operates a business in the City of Sacramento and who directly employs or exercises control over the wages, hours, or working conditions of any employee.” It defines “employee” as workers who are considered employees per California Labor Code section 2750.3, regardless of whether they are unionized. Notably, the SPSL provision only applies to employers with 500 or more employees nationally.
Next Steps: Because the ordinance takes effect on July 15 and no guidance will be forthcoming, covered employers should review their current policies and procedures, and revise them as needed to ensure compliance with all aspects of this ordinance.
1 The city plans to evaluate the law’s impacts and effects by September 28, so the ordinance’s end date could be moved.
2 Sacramento has a sliding scale for administrative penalties, and penalty amounts vary based on conduct. On the sliding scale, Level A violations require a substantial probability of death or serious physical harm and have a penalty of $5,000-$25,000. Level B violations present a threat of serious physical harm, circumstances likely to cause or result in serious harm to property, or a conscious and willful disregard of an order or notice of violation issued by an agency or commission. They have a penalty of $2,500-$4,999.99. Level C violations are likely to cause or do cause harm to property, or they show repeated or continuous noncompliance with an order or notice of violation issued by an agency or commission. They have a penalty of $1,000-$2,499.99. Level D violations are those other than Leave A-C violations, and they have a penalty of $100 to $999.99. Although not explicitly stated in the Sacramento Worker Protection, Health, and Safety Act, it is likely that the penalty for violations of the ordinance will be a Level D violation.