Over the past four weeks, paid sick leave laws at the federal, state, and local levels have developed at an unprecedented pace in response to COVID-19. For starters, on April 1, 2020, the Families First Coronavirus Response Act (“FFCRA”) went into effect throughout the country. The FFCRA includes the Emergency Paid Sick Leave (“EPSL”) and the Emergency Family and Medical Leave Expansion Act (“EMFLA”). 

Not long after the FFCRA went into effect, states and cities enacted local laws, and issued orders to address employers and employees who are not covered by the FFCRA. At the state level, California, which boasts some of the most employee-friendly paid sick leave laws in the country, provided additional guidance on the applicability of its laws due to COVID-19 related illnesses. More specifically, on April 7, 2020, the Department of Industrial Relations published “FAQs on Laws Enforced by the California Labor Commissioner’s Office.” These FAQs provide guidance on when employees can use California paid sick leave, whether employers can require employees to use paid sick leave, and an employer’s obligations regarding reporting time pay.

Several cities in the Bay Area enacted local laws to supplement the FFCRA and provide paid sick leave to employees who were not otherwise covered by the FFCRA. For example, on April 7, 2020, the San Jose City Council passed the “COVID-19 Paid Sick Leave Ordinance” (“PSLO”) which became effective immediately. The PSLO applies to employers that were not required – in whole or in part - to provide paid sick leave benefits under the FFCRA. Similarly, on April 17, 2020, the City of San Francisco implemented the “Public Health Emergency Leave” (“PHEL”). The goal of the PHEL is to temporarily provide public health emergency leave to employees not covered by the FFCRA. Although city officials in Oakland have indicated they are developing an ordinance similar to those in San Jose and San Francisco, Oakland has not yet introduced an ordinance in response to the FFCRA. That said, both Oakland and San Francisco have paid sick leave laws that were enacted before the COVID-19 outbreak.  

Below is a non-comprehensive, high-level overview of obligations employers must comply with under each set of laws. Given the nuances of each of these interrelated paid sick laws, we strongly encourage you to contact us to discuss how they specifically impact your company. 

An Overview of the FFCRA:

As previously discussed in our article – “What Employers Need to Know: Emergency Paid Sick Leave Act and Emergency Family Medical Leave Expansion Act” – starting April 1, 2020, employers with fewer than 500 employees and who are subject to the Fair Labor Standards Act must provide every employee with two weeks of paid sick leave that can be used when the employee is unable to work for any of the following 6 reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2);
  5. The employee is caring for his/her son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Calculating the Amount of Paid Sick Leave

For full-time employees, two weeks of paid sick leave automatically equates to and is capped at 80 hours, whereas for part-time employees, two weeks of paid sick leave equates to the average number of hours the employee works over a 2-week period. Generally, the quantity of paid sick leave hours to be allotted each day is based on the number of hours the employee would otherwise normally be scheduled to work. For part-time employees with varying or irregular schedules, the FFCRA provides several different calculations employers may use to determine how much leave must be given to the part-time employee. The FFCRA also imposes minimum amounts of compensation that must be provided to the employee, and exceptions when an employee is using sick leave under (4), (5), or (6) of the six permissible sick leave reasons set forth above. 

Caps on Paid Sick Leave Compensation

The Act places monetary caps on compensation for certain uses of paid sick leave. For employees using sick leave under reason (1), (2), or (3) above, employers can cap payments at $511 per day and $5,110 in the aggregate. Whereas, for employees using sick leave under reason (4), (5), or (6), employers can cap payments at $200 per day and $2,000 in the aggregate.

Order of Operations With Other Leave Benefits

If the employee is seeking leave for any of the six permissible sick leave reasons, an employer cannot require an employee to use other paid leave provided by the employer before the employee uses the paid sick time under the Act. 

An Overview of Paid Sick Leave Laws in California, Oakland, San Francisco, and San Jose:

Prior to the outbreak of COVID-19, both San Francisco and Oakland had their own paid sick leave laws already in place. In fact, San Francisco was the first city in the country to pass a paid sick leave law that took effect on February 5, 2007. When an employer is subject to multiple sick leave laws, it must comply with all of them, giving employees the benefit of the most generous provision of each law. The following is an overview of the paid sick leave laws for the State of California and the cities of San Jose, San Francisco and Oakland, including recent emergency laws passed in San Francisco and San Jose in response to COVID-19:

California

Oakland

San Francisco

San Jose

Who’s covered?

Workers employed in California for 30 or more days a year after commencement of employment. Certain employees are exempt.

Workers who, in a particular week, perform at least 2 hours of work within the geographic boundaries of Oakland and who are entitled to minimum wage under California law are covered.

Workers employed within the geographic boundaries of San Francisco are covered.

San Francisco’s Public Health Emergency Leave (“PHEL”) covers employers that are not required to comply with the FFCRA, and applies to people working in the geographic boundaries of San Francisco.

The COVID-19 Paid Sick Leave Ordinance (“PSLO”) covers employers that are not required to comply with the FFCRA, and applies to employees who work at least 2 hours in San Jose.

Can sick time be used to care for loved ones?

Yes

Yes

Yes

Yes

Can sick time be used if a worker’s place of work or child’s school/place of care is closed for a health emergency?

No

No

PHEL: Yes

Yes

Rate at which workers earn paid sick time?

1 hour for every 30 hours worked

1 hour for every 30 hours worked

1 hour for every 30 hours worked

Upon enactment of the PHEL: Full Time Employee = 80 hours

Part Time Employee = Entitled to average number of hours s/he works in a two week period over the previous six months ending on February 25, 2020.

Upon enactment of the PSLO: Full Time Employee = 80 hours

Part Time Employee = Entitled to average number of hours s/he works in a two week period.

Do workers have different sick time-related rights based on the size of their employer? If so, based on what employer-size threshold(s)?

No

Yes. Workers in businesses with 10 or more workers can earn up to 72 hours of paid sick time. Workers in businesses with fewer than 10 workers can earn up to 40 hours of paid sick time.

Yes. Workers in businesses with 10 or more workers can earn up to 72 hours of paid sick time. Workers in businesses with fewer than 10 workers can earn up to 40 hours of paid sick time.

Yes.  PHEL covers employers who are not obligated to comply with the FFCRA

Yes.  PSLO covers employers who are not obligated to comply with the FFCRA

Amount of paid sick time that can be earned under the law per year?

Employers may cap the amount of paid sick time a worker earns at 48 hours or 6 days. Employers may also cap the amount of paid sick time a worker can use each year at 24 hours or 3 days.

Workers in businesses with 10+ workers: up to 72 hours. Workers in businesses with fewer than 10 workers: up to 40 hours.

Workers in businesses with 10+ workers: up to 72 hours. Workers in businesses with fewer than 10 workers: up to 40 hours.

PHEL: Full Time Employee = 80 hours

Part Time Employee = Entitled to average number of hours s/he works in two week period over the previous six months ending on February 25, 2020.

Upon enactment of the PSLO: Full Time Employee = 80 hours

Part Time Employee = Entitled to average number of hours s/he works in a two week period.

When do workers begin to earn paid sick time?

At the commencement of employment, but workers aren’t entitled to use paid sick time until the 90th day of employment.

On the first day of employment, but workers aren’t entitled to use paid sick time until after 90th day of employment.

On the first day of employment, but workers aren’t entitled to use paid sick time until the 90th day of employment.

PHEL: April 17, 2020.

April 7, 2020.

Does unused sick time carry forward to the subsequent year?

Workers are entitled to carry over unused paid sick time, but employers aren’t required to allow use of more than 24 hours (or three days) of paid sick time per year. Carry forward is not required if the full amount of paid sick time (24 hours, or three days) is provided at the beginning of each year.

Workers are entitled to carry over 72 hours of unused paid sick time (in businesses with 10+ workers) or 40 hours of unused paid sick time (in businesses with less than 10 workers), but employers are not required to allow workers to exceed these caps.

Workers are entitled to carry over 72 hours of unused paid sick time (in businesses with 10 or more workers) or 40 hours of unused paid sick time (in businesses with fewer than 10 workers), but employers are not required to allow workers to earn more than these 72-hour or 40-hour caps.

PHEL: No

No

As mentioned above, this Advisory is a general and non-comprehensive overview of paid sick leave laws. With the influx of new requirements employers must adhere to, combined with the forthcoming wave of litigation that has already spawned out of these laws, it is likely California and local agencies will increase scrutiny on how employers administer paid time off.  

If you have any questions about paid sick leave requirements, or any other issue relating to employment law, please contact one of our attorneys:

Shareholders Associates
Eric C. Bellafronto Ernest M. Malaspina Shirley Jackson
Karin M. Cogbill Richard M. Noack Sean Bothamley
Jennifer Coleman Daniel F. Pyne III Michael Manoukian