State, County, and City Orders Applicable to Large Employers

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State Order for Food Sector Workers

On April 16, 2020 Gov. Gavin Newsom signed Executive Order N-51-20 to provide two weeks of supplemental paid sick leave to food sector workers in businesses with 500 or more employees. Its purpose was to close the gap left by the Families First Coronavirus Response Act that mandates paid leave benefits for employers with 500 or fewer employees. The order was effective immediately, and will remain in effect for the duration of statewide stay-at-home orders.

A food sector worker is entitled to receive supplemental paid sick leave if he or she is unable to work because:

He or she is subject to a federal, state or local quarantine or isolation order related to COVID-19.
He or she was advised by a health-care provider to self-quarantine or self-isolate due to concerns about COVID-19.
He or she is prohibited from working by the employer due to health concerns related to the potential of transmission of COVID-19.

To qualify for the supplemental paid sick leave under the executive order, the employee must work for or through a business with more than 500 employees nationwide and:

be exempt from the stay-at-home order (N-33-20);
perform work for the business outside the home; and
satisfy one of these:

State Order for Employers with More Than 500 Employees

California Assembly Bill 1867 (AB 1867) requires private employers with more than 500 employees nationally to provide their California employees with supplemental paid sick leave related to COVID-19. According to a news release from Gov. Gavin Newsom’s office, the bill “eliminates coverage gaps to ensure every employee has access to paid sick days if they are exposed or test positive to COVID-19 for 2020.” Those gaps are between federally mandated paid sick leave related to COVID-19 and the governor’s executive order requiring paid sick leave for food service workers, which is codified in Labor Code § 248. Read the bill here.

The law is effective until Dec. 31, 2020, or the expiration of any federal extension of the Families First Coronavirus Response Act, whichever occurs later.

Labor Code § 248.1 also applies to public and private employers of health-care workers and first responders that originally opted not to provide paid sick leave.

Circumstances That Result in Entitlement to Supplemental Paid Sick Leave

Employees who must perform their jobs at the work site are entitled to supplemental paid sick leave if they are:

subject to a federal, state or local self-quarantine or isolation order related to COVID-19;
advised by a health-care provider to self-quarantine or isolate because of concerns related to COVID-19;
prohibited by their employer from working because of concerns about possible COVID-19 transmission.

How Much Paid Sick Leave May Employees Take?

The amount of COVID-19 supplemental sick pay to which California employees are entitled varies:

full-time employees who were scheduled to or did work an average of at least 40 hours a week in the two weeks preceding the start of the leave (with exceptions for some firefighters) –– 80 hours of sick pay;
employees who work a set weekly schedule –– the total number of hours normally scheduled to work during a two-week period;
employees who work variable hours:
1. if the employee worked at least six months –– 14 times the average number of hours worked each day in the six months preceding the start of the leave;
2. if the employee worked fewer than six months and more than 14 days –– the average number of hours worked during the employment;
3. if the employee worked 14 or fewer days –– the total number of hours worked during the employment.

The employee chooses the number of COVID-19 supplemental paid sick leave hours to use, but the employer must make COVID-19 supplemental paid sick leave available for immediate use upon the employee’s oral or written request. The employer may not require medical certification before granting the request.

Hourly Rate of Pay Calculation

COVID-19 supplemental sick pay must be paid at an hourly rate that is the highest of:

the employee’s regular rate of pay for the last pay period (including amounts required by applicable collective bargaining agreement);
the state minimum wage; or
the local minimum wage.

The maximum amount of COVID-19 supplemental sick pay is $511 per day and $5,110 total per employee. An employer may not require an employee to use other paid time off, paid or unpaid leave or vacation time before or in lieu of COVID-19 supplemental paid sick leave. In addition, an employee may use this supplemental leave, in addition to any paid sick leave that might be available under Labor Code § 246. Supplemental paid sick leave runs concurrently with other types of leave except regular paid sick leave.

Employers Who Voluntarily Provided Paid Sick Leave Related to COVID-19

Employers who previously were not required to provide COVID-19 paid sick leave, but who provided leave at a lower rate than required by the new law, retroactively may provide supplemental pay to employees in an equal or greater amount than the new law requires. Also, employers who provided supplemental paid benefits that could be used for COVID-19 are entitled to offset those paid leave hours against the number of COVID-19 supplemental paid sick leave hours the new law mandates.

Additional Provisions for Both State Orders

Food sector employees: Employees who work in a “food facility,” as defined in California’s Health and Safety Code, must be allowed to wash their hands every 30 minutes, and more often as needed. Retroactive to April 16, 2020, employers must provide supplemental paid sick leave for these workers who qualify for leave for articulated reasons related to COVID-19 (which codifies Executive Order N-51-20).

Updated Wage Statements and Written Notice: Under the new legislation, nonfood sector employers must revise their wage statements to recognize “Supplemental COVID-19 Leave” (a separate line item, for example), or provide employees with a separate written notice of how much supplemental paid sick leave is available per pay period. Employers who fail to provide this information by the next full pay period following the bill’s enactment (Sept. 9, 2020), could be subject to liability.

Enforcement: The law authorizes the Labor commissioner to cite employers for a lack of paid sick days, which Gov. Newsom calls “a critical enforcement tool that will promote safety for employees and customers alike.”

Mediation: A small employer family leave mediation pilot program within Department of Fair Employment and Housing (DFEH) has also been created to assist in resolving disputes.

City of Los Angeles

The COVID-19 supplemental paid sick leave emergency order applies to employers with 500 or more employees within the city of Los Angeles, or 2,000 or more employees within the U.S. The number is determined by how many people were employed from Feb. 3, 2020 to March 4, 2020. The presumption is that an individual is an employee, which an employer must rebut to show that someone on the list qualifies as an independent contractor.

Exceptions to the sick leave order include health-care providers or first responders (peace officers, firefighters, paramedics, emergency medical technicians, public safety dispatchers or safety telecommunicators, emergency response communication employees, rescue service personnel).

Under the Los Angeles order, emergency sick leave must be granted:

on oral or written request, and no doctor’s note or other documentation is required (uses are limited to taking time off);
because a health-care provider requires or recommends an employee to isolate or self-quarantine;
because an employee is 65 or older or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease or a weakened immune system;
to care for a family member who is not sick but who public health officials or health-care providers require or recommend to isolate or self-quarantine;
to provide care for a family member whose senior care provider or school or child care provider (for children younger than 18) closed in response to a public health or other public official’s recommendation.

Here are other key points and offsets of the order:

Supplemental paid sick leave runs concurrently with paid sick leave under the FFCRA, and is an addition to California- and Los Angeles-mandated paid sick leave.
City law requires that sick leave be given to employees, and that they may accrue and use as many as six days of paid leave annually. Under the emergency order, large employers must give an additional 10 days to employees who work at least 40 hours a week to enable them to care for a family member who is not sick but who public health officials or health-care providers require or recommend to isolate or self-quarantine.
If an employer has provided paid leave since March 4 for reasons related to COVID-19, those hours will be offset against the 80-hour requirement. For example, if an employer provided a full-time employee five hours of paid leave for COVID-19 purposes after March 4, it would be obligated to provide only 75 hours under the emergency order.

City and County of San Francisco

On April 7, 2020, the San Francisco Board of Supervisors adopted the Public Health Emergency Leave Ordinance (PHELO) that requires private employers with 500 or more employees worldwide to provide workers with paid public health emergency leave. It allows eligible employees to take as many as 80 hours of supplemental paid leave for reasons related to COVID-19.

The ordinance covers employees who have worked 56 or more hours in the year prior to enactment, including part-time and temporary employees. Employers of health-care workers or first responders may elect to exclude their workers.

Employees who may use supplemental paid sick leave:

are subject to an individual or general federal, state or local quarantine or isolation order related to COVID-19;
have been advised by a health-care provider to self-quarantine;
are experiencing symptoms associated with COVID-19 and seeking a medical diagnosis;
are caring for a family member who is subject to an order as described above, has been advised to self-quarantine, or is experiencing symptoms associated with COVID-19;
are caring for family members whose school or child care provider is closed or unavailable due to COVID-19;
are experiencing any other substantially similar conditions specified by the local health officer.

Unlike the Families First Coronavirus Response Act, which is scheduled to remain in effect through Dec. 31, 2020, the PHELO remains in effect until the 61st day following enactment (unless San Francisco enacts a separate measure extending the time frame) or the COVID-19 crisis ends, whichever occurs first.

City of San Jose

San Jose enacted an ordinance similar to the other cities, affecting all employers not already covered by the FFCRA. The measure allows eligible employees to take as many as 80 hours of paid leave for reasons related to COVID-19. Benefits are available immediately, and expire on Dec. 31, 2020.

Eligible employees have worked at least two hours within the city’s geographic boundaries and must leave their residence to perform essential work. The ordinance does not say within what time period the work must have been performed.

Sick leave need not be provided to:

employees who work from home;
employees currently provided with some form of paid personal leave as long as it is at least equal to what the employee would have received under the ordinance (the employer must make up the difference).

Similar to the provisions of the FFCRA, the employee will receive full pay for absences related to his or her own illness (capped at $511 a day and $5,110 total) and up to two-thirds his or her regular rate of pay for caring for a family member (capped at $200 a day and $2,000 total).

Sick leave may be used if:

The employee is subject to quarantine or isolation by federal, state, or local order, or is caring for someone who is quarantined or isolated.
A health-care provider advised the employee to self-quarantine or is caring for someone who has been advised to quarantine.
The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
The employee is caring for a child younger than 18 because a school or child care facility is closed for reasons related to COVID-19.

City of Oakland

On May 12, Oakland enacted a law requiring supplemental sick leave for COVID-19 purposes. The law covers private employers, including those already covered by the FFCRA. The ordinance creates an exemption for "small" employers, defined as those that employed fewer than 50 employees between Feb. 3, 2020 and March 4, 2020. The exemption does not apply to franchisees associated with a franchiser that collectively employs more than 500 employees, or to certain janitorial employers. Health-care providers and first responders may be exempted.

Employers must provide 80 hours of COVID-19 sick leave to employees who worked at least 40 hours per week in Oakland from Feb. 3, 2020 through March 4, 2020, or any point thereafter, or whom the employer classifies as full time. Other employees may receive leave equal to the average number of hours they worked in Oakland over 14 days during the period from Feb. 3, through March 4, 2020.

An employee may use the leave for all FFCRA sick leave purposes, including leave to care for a child whose school or day care has been closed and for an employee 65 years or older with certain conditions that might place him or her at heightened risk for COVID-19.

Leave can be taken in one-hour increments and intermittently.

Businesses should to check their local health and safety orders frequently to ensure that they are complying with all requirements.

An in-depth look at all of the local orders and ordinances is beyond the scope of this guide, but readers may link to many from the Appendix section below.

INTRODUCTION

EMPLOYMENT AND LABOR LAW

WORKERS' COMPENSATION LAW