San Jose Revises Emergency Paid Sick Leave Law While Other California Localities Take Steps Toward Similar Action

On January 5, 2021, California’s 2021 emergency paid sick leave landscape became clearer as San Jose enacted a revised emergency paid sick leave ordinance, and Los Angeles County directed staff to prepare a proposal to revise its currently expired ordinance. Additionally, officials in Santa Rosa and Oakland have calendared discussions concerning what to do with their expired laws.

San Jose Revised COVID-19 Paid Sick Leave Ordinance (RCPSL)

Similar to the first time San Jose passed a COVID-19 sick leave ordinance, the San Jose City Council and mayor unanimously enacted an urgency (and passed on first reading a regular) ordinance that revises the COVID-19 paid sick leave ordinance they originally enacted in April 2020. As an urgency ordinance, the law took effect immediately, retroactive to January 1, 2021, and will remain in effect through June 30, 2021.

Coverage: The revised ordinance applies to all employers, as compared to the original ordinance which applied only to private employers not covered by the federal Families First Coronavirus Response Act (FFCRA) – private employers with 500 or more U.S. employees – or who could exempt themselves from providing FFCRA emergency paid sick leave. Covered employees remain the same: individuals who work at least two hours in San Jose.  

Covered Uses: Under the revised ordinance, covered uses are nearly identical to those under the original law. Employees can use leave when they are unable to work because they:

  • Are subject to a federal, state, or local quarantine or isolation order related to COVID-19, or are caring for an individual subject to an order;
  • Have been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or are caring for an individual so advised;
  • Are experiencing symptoms of COVID-19 and seeking a medical diagnosis.

Additionally, employees can use leave if their child’s school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions. This differs slightly from the original law, under which employees could use leave to care for a minor child whose school or daycare closes due to COVID-19.

Like the original law, the revised ordinance contains a telework exception, i.e., if employees can work from home, they do not receive leave. Unlike the original law, however, the revised ordinance does not require that an employee perform “essential” work per local health orders.

Amount of Leave: Under the revised ordinance, full-time employees continue to receive 80 RCPSL hours, and, generally, part-time employees receive an amount of RCPSL hours equal to the number of hours they work on average over a two-week period. The revised ordinance also includes a calculation for variable-hour part-time employees. For those employees whose schedule varies from week to week, they receive a number of RCPSL hours equal to average number of hours they were scheduled per day (or on leave) over the six-month period preceding leave. For those whose employment is less than six months, however, employees receive a number of RCPSL hours equal to the reasonable expectation at the time of hiring of the average number of hours per day they would normally work.

Notably, the revised ordinance contains the following provision:

Notwithstanding anything to the contrary in this Ordinance, the sick leave hours set forth in this Section 8 shall be the total number of hours available to the Employee for the period of April 2, 2020 (the effective date of the federal Emergency Sick Leave Act) through the expiration date of this Ordinance.

It is hoped the Office of Equality Assurance will clarify this provision sooner rather than later.  During the city council meeting during which the RCPSL was passed, agency representatives indicated they were revising their FAQs. One plausible interpretation is that the amount of emergency paid leave employers provided in 2020 for the same covered reasons counts toward the RCPSL obligation. Employers that were covered by the federal FFCRA will be particularly interested so that they can determine whether the up to 80 hours of emergency paid sick leave and/or the up to 12 weeks of emergency family leave for childcare-related issues will offset their RCPSL obligation.

Similar to the original law, the revised ordinance allows employers to satisfy their RCPSL obligation via existing paid leave benefits; to the extent the amount of employer-provided leave is less than what the law requires, employers must provide additional RCPSL.

The revised ordinance contains a hierarchy-of-leave provision that says employees can use RCPSL first, and employers cannot require them to use other employer-provided leave before they use RCPSL. Although this type of provision has been common in many emergency paid sick leave laws, its inclusion in the revised ordinance is peculiar given that RCPSL under the San Jose ordinance, unlike similar laws, does not purport to require an employee to provide an additional benefit to employees.

Rate of Pay: The revised ordinance’s pay standards largely mirror those under the original law. When employees use leave to care for others, employers can limit pay to two-thirds of the employee’s regular compensation rate. For personal use absences, employers pay employees their regular rate or pay or (now) the applicable minimum wage, whichever is greater. Like the original law, employers can cap the daily and overall pay amount at $511 per day ($5,110 overall) for personal use absences, and $200 per day ($2,000 overall) for leave used to care for another. If employment ends (or the law expires) before employees have used their RCPSL, employers do not need to cash out the unused balance.

Prohibitions: Like the original law, as a condition of providing leave, employers cannot require employees to search for or find a replacement worker to cover the hours they will miss during an absence. Additionally, the revised ordinance includes an anti-retaliation provision that prohibits employers from terminating, disciplining, or otherwise discriminating against employees for taking leave, filing a complaint or instituting a proceeding related to the law, or testifying in such a proceeding.

Enforcement & Remedies: The revised ordinance, like its predecessor, allows employees to file complaints with San Jose’s Office of Equality Assurance. Additionally, the revised ordinance allows civil lawsuits by employees individually, employee organizations, and individuals acting on the public’s behalf, concerning alleged violations on or after January 1, 2021. If successful, plaintiffs can recover reasonable attorney’s fees and costs, interest on damages, and appropriate legal or equitable relief, e.g., back wages, an additional $50 civil penalty to each person whose rights were violated for each day the violation occurred or continued, reinstatement, and/or injunctive relief. Additionally, the city can, e.g., issue fines, revoke or suspend business licenses and permits, or recoup its enforcement costs.

Los Angeles County

The Board of Supervisors unanimously approved a motion directing the County Counsel to, before January 26, 2021, draft an ordinance that extends the duration of the county’s emergency paid sick leave ordinance, which expired at the end of 2020, and to have the revised ordinance apply to all employers in the county’s unincorporated areas instead of just those with 500 or more U.S. employees.

State of (Local) California Emergency Paid Sick Leave in 2021

San Jose joins Long Beach, Los Angeles (City), Sacramento (City & County), San Francisco, and San Mateo County as local jurisdictions in California where emergency paid sick leave laws will continue in 2021. As referenced above, Los Angeles County might soon join the list, as could Santa Rosa, which, on January 12 will hold a study session to discuss options for extending the duration and/or expanding the scope of its ordinance. Additionally, on January 7, Oakland City Council’s Rules & Legislation Committee will hold a hearing, with the full council expected to discuss a proposal on January 19.

Next Steps

Employers should monitor the San Jose Office of Equality Assurances’ emergency paid sick leave webpage for updates to FAQs that might clarify provisions in the revised law. Additionally, they should consult with knowledgeable counsel about whether and how they must revise policies and practices to comply with the 2021 version of the law; this is particularly important for employers with 499 or fewer U.S. employees that intend to seek federal tax credits for continuing to provide emergency paid leave (as defined by the FFCRA) in 2021. Companies will need to monitor legislative websites and meetings for Los Angeles County and Santa Rosa, and keep an eye out for other local jurisdictions refreshing, or enacting new or expanded, emergency paid sick leave ordinances, or additional state and/or federal level action in 2021.

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.