Sonoma County, California Enacts Emergency Paid Sick Leave Ordinance

On August 18, 2020, Sonoma County joined the list of California cities and counties that have enacted emergency paid sick leave ordinances. The urgency ordinance took effect immediately and will remain in effect until December 31, 2020, unless the law on which it is modeled, the federal Families First Coronavirus Response Act (FFCRA), is extended. If the FFCRA is extended, Sonoma County’s "mini-FFCRA" law will extend for an identical period of time.

Sonoma County is now, to date, the 10th California jurisdiction to enact a local emergency paid sick leave ordinance during the coronavirus public health emergency, joining Long Beach, City of Los Angeles, County of Los Angeles County, Oakland, Sacramento, San Francisco, San Jose, County of San Mateo, and Santa Rosa. In addition, there is a statewide emergency paid sick leave requirement for food sector workers. Sonoma County acknowledges the statewide food sector worker requirement in the introduction to the ordinance, but does not address how the county and statewide requirements interact.

Covered Employers, Employees & Family Members: Sonoma County's law will apply to employers with 500 or more employees in the United States, i.e., those the federal FFCRA does not cover. Additionally, it covers any employee who has worked for an employer for more than two hours in the county's unincorporated areas,1 i.e., it will not apply to workers in Santa Rosa, an incorporated city in the county that has its own mini-FFCRA ordinance. Like many other California ordinances, the law presumes any worker providing services is an employee and employers must prove an individual's independent contractor status according to California law in order for an independent contractor to be exempt from the ordinance’s coverage. Unlike the FFCRA, there is no potential exception for employees who are health care providers or emergency responders.2 Additionally, there is no exception available for employers with unionized workforces.

Employees can use supplemental paid sick leave when they have a personal need to be absent from work or to care for an "individual," i.e., an employee's immediate family member, a person who regularly resides in the employee's home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if quarantined or self-quarantined, or if their senior care provider, school, or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation. An “individual” does not include persons with whom the employee has no personal relationship. The ordinance intends this term’s interpretation to be consistent with the FFCRA.

Amount of Leave: Under the ordinance, full-time employees normally scheduled to work 40 or more hours per week are entitled to up to 80 hours of supplemental paid sick leave (SPSL). Part-time employees normally scheduled to work fewer than 40 hours per week are entitled to an amount of SPSL no greater than the employee’s average number of work hours in a two-week period, calculated over the past six months. Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

Generally, subject to the law's "offset" provision, SPSL is in addition to any paid sick leave employees receive under California's pre-COVID-19 statewide paid sick and safe time law, and any preexisting paid time off benefits (vacation, sick and/or PTO) provided to employees before March 16, 2020. However, the ordinance contains an "offset" provision, which would allow an employer to use other benefits to satisfy its SPSL obligation. To the extent an employee has at least 80 hours of accrued paid sick leave as of August 18, 2020, or at least 160 hours of a combination of paid sick leave, vacation and/or PTO (combined paid leave), the obligation to provide SPSL is deemed satisfied. Further, if an employee’s accrued paid sick leave is less than 80 hours, or their accrued combined leave is less than 160 hours, an employer must provide enough SPSL to make up the difference. For example, if an employee’s accrued combined leave bank presently sits at 120 hours, the employer would only need to “top up” the employee’s accrued combined leave bank to provide an additional 40 SPSL hours to meet the employer’s overall SPSL obligation (i.e., the 80-hour SPSL obligation would be met by allowing an employee to use up to 40 hours of existing accrued combined leave and the 40 “top up” SPSL hours provided). An employer cannot require an employee to use any other paid or unpaid leave, sick pay, paid time off, or vacation time provided by the employer to the employee before an employee uses SPSL.

Covered Uses: Employees can use SPSL when they cannot work, or telework, because:

  1. The employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee needs to care for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID19, or has been advised by a health care provider to self-quarantine related to COVID-19, or is experiencing COVID 19 symptoms and is seeking a medical diagnosis; or
  5. The employee needs to provide care for an individual whose senior care provider, school, or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.

As noted, the ordinance covers, rather than potentially excepts, employees who are health care providers and emergency responders (both terms defined per the FFCRA). These employees can use SPSL for all the above reasons.3

Requesting and Documenting Leave: An employer must provide SPSL upon an employee's written request, which includes, but is not limited to, email and text messages. An employer may require employees to follow reasonable notice procedures only for foreseeable absences. Employers may only take reasonable measures to confirm an employee’s SPSL eligibility in accordance with the FFCRA. Employers may require employees to identify the basis for which they are requesting leave, but cannot require employees to furnish a doctor's note or other supporting documentation.

Payment for Leave: Employers pay SPSL at the employee’s regular rate of pay, as calculated per the FFCRA. However, unlike the FFCRA, the maximum amount of pay for all types of absences is $511 per day and $5,110 in the aggregate. Unlike the FFCRA, employers cannot pay two-thirds the regular rate or cap pay at $200 per day for certain absences. When employment ends, employers need not cash out unused SPSL.

Posting & Recordkeeping: Employers must provide employees notice of their rights by posting a notice in English and Spanish in the workplace, on any intranet or app-based platform or via email. Because the county does not designate an agency to interpret the ordinance, the responsibility for creating a notice lies exclusively with employers. For at least three years, employers must keep a record of each employee’s name, hours worked, and pay rate. Although the law does not expressly require employers to keep records about leave use, to protect against allegations of non-compliance, employers should keep such records.

Prohibitions & Enforcements: Any prospective waiver by an employee of any or all of the law's provisions is contrary to public policy, void and unenforceable. Employers cannot require employees to find a replacement worker as a condition of using leave. Finally, an employer cannot discharge, reduce in compensation, or otherwise discriminate against any employee for: 1) opposing any practice the law prohibits; 2) requesting or using SPSL; 3) participating in proceedings related to the law; 4) seeking to enforce rights under the law by any lawful means; or 5) otherwise asserting rights under the law.

No agency has been designated to enforce the law, so the only recourse for employees claiming a violation is to file a lawsuit in state court. If they prevail, they can receive: A) reinstatement if unlawfully discharged; B) back pay and SPSL unlawfully withheld, calculated at the employee’s average rate of pay; C) other legal or equitable relief a court deems appropriate; and D) reasonable attorney’s fees and costs.

Next Steps: California is experiencing a “gold rush” of coronavirus-related emergency paid sick leave laws. Employers with California operations may find monitoring and navigating these laws increasingly difficult. Although the laws may share similarities, they also contain notable differences, making it a challenge to standardize policies and practices across all California locations. Additionally, there is always the possibility that the state legislature might add new, or amend existing, protected leave rights because of COVID-19, as the end of the legislative session grows near. August 31 marks the last day for each legislative chamber to pass bills, and September 30 is the last day for the governor to sign or veto bills passed before September 1. Employers looking for a “Eureka!” moment should brainstorm with knowledgeable counsel about how to successfully – and compliantly – administer any applicable leave of absence and related pay benefits in California.

See Footnotes

1 This is similar to requirements in San Mateo County and Los Angeles County.

2 Currently, the scope of the FFCRA health care provider exception is unclear.  See Bill Allen, Emilie Hammerstein, Alexis Knapp, and Jeff Nowak, NY Federal Court Strikes Down Key Provisions of DOL Rule Regarding FFCRA Paid Sick and Expanded FMLA Leave, Littler Insight (Aug. 4, 2020).

3 The only potential difference might be purely typographic. The "general" provision allows leave for an employee who "is experiencing symptoms of COVID-19 and is seeking a medical diagnosis." However, under the separate provision for health care providers and emergency responders, the language is "has COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis."

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.