February 8, 2021
In the effort to provide sick leave to employees who did not receive it under the Families First Coronavirus Response Act (“FFCRA”) or California Assembly Bill 1867 (“AB 1867”) (both of which expired on December 31, 2020), many local cities, counties and state agencies have enacted laws requiring employers to extend Supplemental Paid Sick Leave (“SPSL”) to their employees.
For example, the City of Long Beach’s COVID-19 SPSL ordinance covers employees who perform any work within the City, except for emergency responders, health care providers, government employees, or employees able to work from home. The ordinance applies to employers with 500 or more employees nationally, and currently has no expiration date. While an employer may require an employee to identify the basis for requesting SPSL, the employer cannot require a doctor’s note or other documentation for the employee to use SPSL. Further, under the ordinance, employees are not required to exhaust their sick leave or other accrued leave prior to using SPSL.
On December 8, 2020, San Mateo County passed an urgency ordinance extending emergency COVID-19 SPSL through June 30, 2021. On December 15, 2020, two other jurisdictions approved similar measures: The Sacramento County Worker Protection Health and Safety Act of 2020 was extended through March 31, 2021; and the city and county of San Francisco extended the Public Health Emergency Leave Ordinance through February 10, 2021.
On January 5, 2021, San Jose passed an ordinance extending its SPSL until June 30, 2021, expanding it to apply to all employers with employees working in the City. Joining other counties and cities, on January 19, 2021, the City of Oakland extended and modified its existing emergency paid sick leave ordinance into 2021. Most recently, Los Angeles County amended its COVID-19 SPSL ordinance, requiring both small and large employers in unincorporated parts of the County to extend SPSL to its employees, discussed in greater detail below.
Los Angeles County
Los Angeles County’s amended ordinance became effective on January 26, 2021 and is retroactive to January 1, 2021. The ordinance’s lifespan is currently indefinite and will remain in effect until two calendar weeks after the County declares that the COVID-19 local emergency has expired. The amended ordinance permits employers in unincorporated areas of Los Angeles County to require documentation for employees to use SPSL. While the amended ordinance is in large part aligned with the original ordinance, which expired on December 31, 2020, notable differences include the following:
- No Employee Threshold for Covered Employers: There is no longer a threshold based on the number of employees. Under the amended ordinance, both large and small private employers in unincorporated parts of the County are required to provide supplemental paid sick leave.
- Covered Employees Expanded: Apart from emergency responders and health care providers, the amended ordinance covers persons who perform any work within the unincorporated parts of the County.
- Allotment of SPSL Benefits Including Offset Against FFCRA/AB 1867:
- Employees who work at least forty (40) hours per week or are classified as full-time shall receive no more than eighty (80) hours of SPSL under either the FFRCA and/or AB 1867 or the amended ordinance;
- Employees who work less than forty (40) hours per week and are not classified as full-time shall receive SPSL in an amount not greater than their highest average two -week pay between January 1, 2020 and January 26, 2021;
- Employees who have already exhausted their SPSL entitlement under the FFCRA and/or AB 1867 or the original ordinance are not entitled to additional leave under the amended ordinance.
- Covered Reasons: SPSL is available to all employees upon written request (including text or email) who cannot work or telework due to any of the following reasons:
- A public health official or healthcare provider requires or recommends that the employee self-isolate or quarantine to prevent the spread of COVID-19;
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65-years old or has a health condition such as “heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system”);
- The employee is caring for a family member who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to isolate or self-quarantine; or
- The employee needs time off to care for a family member whose senior care provider, school, or child-care provider has ceased operations in response to a public official’s recommendation.
Exclusion Pay Under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS)
Cal/OSHA’s COVID-19 ETS require employers to exclude from work, for at least 10 days on average, any employees who (1) test positive for COVID-19, or (2) have experienced a COVID-19 exposure in the workplace. If an employee is “able and available to work” and the exposure is work-related, the ETS also require the employer to continue to provide the employee’s pay and benefits while excluding them from the workplace. The ETS regulations do provide two exceptions to the rule requiring employers to continue and maintain earnings and benefits during a period of exclusion: (1) during any period of time when the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission; and (2) if the employer demonstrates that COVID-19 exposure is not work-related. Unfortunately, the regulations do not provide clarification as to how an employer could demonstrate that COVID-19 exposure is not work related so employers are encouraged to document their communications with employees and their files for evidence to support the position when and if the exposure is not work-related.
Ultimately, while leave under the FFCRA or AB 1867 was not extended into 2021, employers must continue to comply with other laws and local ordinances that provide employees with additional leave rights. In recourse, employers allowing employees to continue their FFCRA-like leave up to the original leave entitlement (and pursuant to the overlapping qualifying reasons for benefits in the ordinances outlined above) may claim the payroll tax credit through March 31, 2021. Employers are reminded that all employees who need to take time off but have exhausted their SPSL entitlement should be advised to use sick and/or vacation time available from employer-provided benefit accruals. Further, temporary unemployment, disability benefits through the Employment Development Department, and/or workers’ compensation benefits, as applicable, serve as additional means for employees to take needed time off, depending on the circumstances.
Finally, employers should be careful not to violate their own policies and ensure that the basis required of employees needing time off related to COVID-19 is no greater than that required for other types of illness or injuries.
As COVID-19 related laws continue to emerge and change given the unprecedented nature of the illness and its resulting obligations on employers, we encourage you to contact Pearlman, Brown and Wax’s Employment Law Department for guidance and assistance to ensure compliance.
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