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 February 2, 2021, the Santa Rosa, California City Council voted to extend and make changes to its emergency paid sick leave (EPSL) ordinance that had expired at the end of 2020. Leading up to the meeting, proposed subcommittee amendments were available in print. The council made a handful of amendments during the meeting, however. The final version of the amended ordinance is available here.
Extension: The amendments took effect immediately on February 2, 2021, extending the ordinance through March 31, 2021, or the date federal tax credits expire for providing paid leave under the federal Families First Coronavirus Response Act (FFCRA), whichever is later.1 Like Sonoma County (where Santa Rosa is located), however, the city council did not make the amendments retroactive, so employers will need to comply only on a prospective basis beginning February 2, 2021.
No New Bank of Leave: Comments during the meeting stressed that, although the city is extending the requirement to provide emergency paid sick leave, it is not requiring employers to provide a new bank of leave. For example, if an employee used all available EPSL during 2020, whether through FFCRA, California law or the prior city ordinance, an employer need not provide additional leave, even if the employee has an additional need for leave.
Covered Employers: Originally, Santa Rosa’s law applied to employers with 500 or more U.S. employees, and to employers with 499 or fewer U.S. employees – i.e., those covered by the FFCRA – but only to the extent the local ordinance provided benefits that exceeded federal law (e.g., covered uses, pay requirements).
Beginning January 1, 2021, FFCRA paid leave became a voluntary benefit employers with 499 or fewer U.S. employees can opt to provide and, if they elect to do so, they can receive federal tax credits for providing such leave through March 31, 2021. Given the absence of a federal paid leave mandate, Santa Rosa amended its law to require that the employers that had been required to provide paid leave under the FFCRA in 2020 provide Santa Rosa EPSL. Nevertheless, the law continues to include a potential partial exemption for employers with 49 or fewer employees; in a nutshell, employers with 49 or fewer employees need not provide leave for child-care purposes if allowing such leave would jeopardize the viability of the business as a going concern.
Covered Uses: Originally, the ordinance provided that employees could use EPSL for any of five listed reasons. Unlike the FFCRA, the original law did not expressly say an employee needed to be unable to work or telework in order to use leave. During the meeting, the council adopted an amendment providing that employees can use leave when they are unable to work for any of the listed reasons. The intent of the amendment, which was proposed via a public comment, was to address the telework/work from home issue.
New Pay Rate Tiers: Originally, the ordinance required employers to pay employees at their full regular rate of pay, regardless of whether the employee needed leave for personal reasons or to act as a caregiver, and it set maximum pay caps at $511 per day and $5,110 overall. This differed from the FFCRA’s two-tier approach. The amended ordinance will generally use the FFCRA’s approach going forward. When employees take leave for a qualifying personal reason, they need to receive their regular rate of pay, up to the $511 per day /$5,100 overall, but when employees take leave to care for another, including leave related to school closures, they need to receive two-thirds of their regular rate, up to $200 per day and $2,000 overall. This two-tier pay standard will apply regardless of the size of the employer, i.e., whether an employer has more or less than 500 U.S. employees.
Curtailing Leave Abuse: Notably, an amendment adds language to the ordinance providing that, if employers can show employees’ need for leave was due to the employee intentionally violating a health order, they may deny the leave request. To provide an example of how this situation might arise, think back to the 2020 holiday season when, contrary to the specific guidance from public health officials, individuals did not stay home and instead travelled outside their city, county, or state and, upon return, might have been required to quarantine due to a local or statewide order. Although employers now may have the ability to deny leave in such cases, they should exercise caution.
New Notice Requirement: Originally, the ordinance did not require employers to notify employees about their rights under the law, individually or via a poster. The amended law, however, requires employers to give written notice to each employee of the individual’s rights under the law; for new employees, employers must provide this notice within one week of employment beginning.
State of Affairs in California: With Santa Rosa’s action, all 11 local California EPSL ordinances from 2020 are back in 2021, in identical or in similar fashions. We expect Sonoma County to vote on additional amendments to its law that would extend coverage to more employers. Although currently the February 9 agenda does not include an EPSL item, it remains possible that the Board of Supervisors will add EPSL amendments to the agenda.
Despite the consistent extension of local EPSL laws, the California Legislature has not introduced a proposal to reinstate or expand the statewide emergency paid sick leave laws, nor has the governor acted through an executive order to do the same. Additionally, employers across the country wait to see whether, and if so, how, the federal government might extend or expand the FFCRA.
1 Additionally, the following new provision was added to the ordinance to address the possibility that the federal government would further extend federal tax credits for voluntarily providing FFCRA paid leave or revive and/or amend the FFCRA’s mandate to provide paid leave: “To the extent that federal or state law requires Employers to provide paid leave or paid sick time specifically related to COVID-19, Employers may substitute leave under the federal or state law for its obligations under this ordinance to the extent they [sic] those obligations coincide and the relevant federal or state law permits such concurrent use of paid leave; provided, however, that Employers shall be required to provide additional paid sick leave under this chapter to the extent that the requirements of this chapter exceed the requirements of those laws.”