The Ninth Circuit recognized that plaintiff’s argument was novel but was thwarted by the statute itself.  Plaintiff below, argued on behalf of a class, that the company violated the Fair Credit Reporting Act (FCRA) by presenting the FCRA disclosure at the same time the company presented other separate documents.  The District Court granted summary judgment and the Ninth Circuit affirmed. Luna v. Hansen and Adkins Auto Transport, Inc., No. 18-55804 (9th Cir. Apr. 24, 2020).

Please find the full article on the Jackson Lewis Employment and Collective Action Update.

As shelter in place orders were rolled out in California, many businesses transitioned their workforce to remote work for the first time. Employers had to determine how to track hours worked or what qualified as a business expense. However, other unique questions arise with a remote workforce, such as how to handle employees using marijuana while working from home.

Over a decade ago, when California passed the Compassionate Use Act, an employee questioned an employer’s right to prohibit marijuana use. The California Supreme Court in Ross v. Ragingwire held the employer need not accommodate medicinal marijuana use, irrespective of the Compassionate Use Act of 1996. Ross reasoned that since the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate illegal drug use, the employer could lawfully deny employment to individuals using medical marijuana, which remains illegal under federal law.

More recently, in 2016 California legalized marijuana for recreational use, which further complicated employee marijuana use at work. Despite the change in marijuana’s legal status, the law reiterated that an employer could have a policy against the use of drugs while working or at the workplace.

While the law permits employers to prohibit drug use at work, now a large portion of workers are working remotely, Unfortunately, the lines for employees may be blurred since they are in their own homes (and many people seem to need a little extra help getting through this pandemic).

Employers should remind employees that during working hours, the expectation is that employees will comply with all policies of the company, including drug and alcohol policies. If the company does not have a drug and alcohol policy, it may want to include information prohibiting the use of drugs and alcohol while performing work in a remote work agreement or work from home policy.

If a manager or supervisor suspects that an employee is using marijuana or other drugs while performing work for the company, the supervisor should be instructed to reiterate the company’s policies.

The more difficult aspect of a remote workplace is handling an employee who is clearly under the influence while working, such as appearing intoxicated at a video conference. In California, an employer can only request an employee undergo a drug test under limited circumstances, including if there is reasonable suspicion that the employee is under the influence. While there may be sufficient evidence to request a drug test, due to concerns surrounding COVID-19 including overwhelmed medical providers, an employer will need to more carefully consider whether to insist an employee submit to a drug test at this time. Similarly, as some employers are actually hiring new employees during COVID-19, they too may wish to consider whether to postpone typical post-offer, pre-hire drug tests until the current health crisis has calmed down. Of course, drug tests are still necessary for employees in safety-sensitive positions, but they typically are not working remotely.

If an employee voluntarily requests leave for drug rehabilitation, assuming the employer’s workforce is over 25 employees, the employer should grant the leave pursuant to California Labor Code Section 1025, unless the leave would result in an undue hardship. Other leaves may also apply, so employers should consult with their Jackson Lewis attorney. However, of note, all the new COVID-19 California Paid Sick Leaves are limited to either actual COVID-19 diagnosis or exposure, caring for family, or childcare issues only. As such there will be no need to grant paid sick leave to an employee who claims pandemic stress-induced drug use.

Employers should also be cautious that they are not overstepping into trying to control an employee’s lawful off-duty activities. This may include, for instance, seeing social media posts from employees using marijuana at home. Unless it’s clear from the post that the marijuana usage occurred during working hours, employers should refrain from taking any action.

If you need assistance preparing a substance abuse policy, please let us know. Jackson Lewis is also here to assist you with all issues pertaining to COVID-19. To subscribe to our daily COVID-19 briefings, click here.

Soon after San Jose passed its supplemental paid sick leave ordinance to respond to the COVID-19 crisis, it issued further guidance regarding the leave. The Director of the Office of Equality Assurance, the office charged with enforcement of the emergency ordinance, has also issued an opinion letter to provide additional information.

The opinion letter addresses the question of whether an employer that already provides the amount of sick leave hours required by the ordinance, must also provide additional leave for an employee who has exhausted some or all of that leave on the ordinance effective date. The opinion letter states, “[e]mployers covered by the ordinance are required to provide, on the ordinance effective date, at least the number of paid sick leave hours required by Section 9 [of the ordinance], regardless of paid sick leave accrued or used by the employee prior to the effective date.”

Essentially, the employer must provide the amount of sick leave hours needed to bring the employee up to the total hours required by Section 9 of the ordinance (80 hours for full-time employees) by April 7, 2020. An employer that provides some combination of paid personal leave less than the paid sick time required by the ordinance must provide the differential amount to the extent of such deficiency.

For example, assume an employer provides a full-time employee with eighty (80) hours of paid sick leave on January 1, 2020, and the employee had used twenty-four (24) hours of paid sick leave by the ordinance effective date. To comply with the ordinance, the employer must provide the employee with twenty-four (24) hours of additional paid sick leave on the ordinance effective date. The additional twenty-four (24) hours is subject to the limitation that it can be used only for the COVID-19 related reasons stated in the ordinance.

Employers subject to the ordinance are advised to provide notice to employees of their rights under the ordinance by posting or providing a copy of the notice issued by the city.

The COVID-19 Paid Sick Leave webpage indicates that the Office of Equality Assurance will continue to issue opinion letters in response to common questions regarding the ordinance.

Jackson Lewis will continue to monitor emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

Late April 17th, Mayor Breed signed the supplemental paid sick leave ordinance that earlier in the week, the Board of Supervisors had amended and passed. This was the same day that Mayor Breed announced an order requiring all individuals in public to wear face coverings.

The ordinance, like those passed by the cities of Los Angeles and San Jose, covers employers with 500 or more employees that are not otherwise subject to the federal Families First Coronavirus Response Act (FFCRA).

The enacted ordinance applies to all full-time or part-time employees working within the City, though a prior version of the ordinance required employees to have worked 56 hours or more. Full-time employees are provided 80 hours of emergency leave, while part-time employees receive less, based upon an average of hours worked over a two-week period.

An employee will be eligible for leave if:

  1. The employee is subject to an individual or general federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee is advised by a healthcare provider to self-quarantine;
  3. The employee is experiencing symptoms associated with COVID-19 and seeking medical diagnosis;
  4. The employee is caring for a family member subject to a quarantine or isolation order;
  5. The employee is caring for a family member because the family member’s school or place of care has been closed to the public health emergency caused by COVID-19.
  6. The employee is within a “vulnerable” population as defined by the Ordinance.

The Office of Labor Standards Enforcement (OLSE) has already released the approved notice for employers to provide to employees to notify them of their rights under the ordinance. Employers must provide this notice as soon as possible in order to comply with the requirements of the ordinance.

The OLSE has also published guidance to assist with complying with the new ordinance.

Jackson Lewis will continue to monitor emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

San Francisco remains at the forefront of COVID-19 related relief to those employees who work within the City and County limits.  Recently, the San Francisco Board of Supervisors has continued this effort and passed the Public Health Emergency Leave Ordinance (PHELO).  PHELO is an emergency ordinance set to temporarily require private employers with 500 or more employees to provide public health emergency leave during the public health emergency related to COVID-19.

PHELO was passed to address the emergency paid leave coverage gap created by the Families First Coronavirus Response Act (FFCRA) by extending paid leave to employees within the City who are not covered by the FFCRA.

The Board of Supervisors amended PHELO on April 14, 2020, before it was finalized by the mayor’s office.   Under the amended version, most workers who have performed work within San Francisco are covered.  A San Francisco worker who was considered a full-time employee as of February 25, 2020, will  be provided 80 hours of Paid Sick Leave and an employee who was a part-time as of February 25, 2020, will be provided the number of hours “equal to the average number of hours over a two-week period that the Employee was scheduled over the previous six months ending on February 25, 2020.”

The Board also expanded leave to those individuals classified as a member of a “vulnerable population” per Order No. C19-05, or any order issued by Bay Area jurisdictions recommending or requiring additional restrictions for vulnerable or high-risk populations.  Further, the amendment clarifies that this Emergency Leave is 80 hours of additional leave beyond what an employer’s policies provide under either vacation or sick leave.   However, the amendment provides an offset if, on or after February 25, 2020, an employer provided paid time off for COVID-19 outside of their normal leave policies.  Finally, the amendments limit the ability of health care providers (such as doctors and certified nurse practitioners) and emergency responders to use this emergency leave (as opposed to prohibiting their use entirely, as suggested by prior versions.)

PHELO expires on the 61st date upon enactment, or on the day the SF mayor declares the end of the public health emergency, whichever comes first.

PHELO is presently pending approval from San Francisco Mayor London Breed, who has until April 24, 2020, to sign the emergency ordinance for it to become law.

Jackson Lewis will continue to monitor emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

In recent weeks, San Jose and Los Angeles have passed ordinances to provide supplemental paid sick leave to employees not otherwise covered by the recently enacted federal Families First Coronavirus Response Act (FFCRA). San Francisco has a similar ordinance pending. On April 16th, Governor Newsom issued Executive Order N-51-20, which provides COVID-19 related paid sick leave for “food sector workers” throughout the state who work for larger employers.

What employers are covered?

As the order is intended to cover perceived gaps in the FFCRA, it applies to employers with 500 or more employees located anywhere in the United States. To determine the number of employees, the order refers to the FFCRA regulations addressing that issue.

The order specifically includes any Delivery Network Company (as defined in Revenue and Taxation Code section 6041.5(b)) and any Transportation Network Company (as defined in Public Utilities Code section 5431(c)) with 500 or more employees.

What is the definition of a Food Sector Worker?

The order includes a broad swath of employees in the food sector. In addition to working in one of the industries listed below, the person must (1) leave his/her home or place of residence to perform work and (2) be considered an “essential critical infrastructure worker” and not be subject to the Governor’s Executive Order N-33-20 or any other statewide stay-at-home order.  The order includes individuals working in the following industries:

  • Employees engaged in the canning, freezing, and preserving industry, as defined under Wage Order 3-2001 section 2(B).
    • This includes any industry, business, or establishment operated for canning soups, or of cooking, canning, curing, freezing, pickling, salting, bottling, preserving, or otherwise processing any fruits or vegetables, seafood, meat, poultry or rabbit product, when the purpose of such processing is the preservation of the product and includes all operations incidental to that preparation.
  • Employees engaged in industries handling products after harvest, as defined under Wage Order 8-2001 section 2(H).
    • This includes any industry, business, or establishment operated for grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking, shelling, candling, separating, slaughtering, picking, plucking, shucking, pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution, and includes all the operations incidental to that handling/preparation.
  • Employees engaged in industries preparing agricultural products for market, on the farm, as defined under Wage Order 13-2001 section 2(H).
    • This includes any operation performed in a permanently fixed structure or establishment on the farm or a moving packing plant on the farm to prepare agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced these products and includes all operations incidental to that preparation.
  • Employees employed in an agricultural occupation, as defined under Wage Order 14-2001 section 2(D).
  • Employees who work for an employer that operates a food facility, as defined under Health and Safety Code section 113789 (a)-(b).
  • Employees who deliver food from a food facility, as defined under Health and Safety Code section 113789 (a)-(b).

When can a Food Sector Worker take supplemental paid sick leave?

Eligible employees can take supplemental paid sick leave if the employee is unable to work because:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • The employee is advised by a healthcare provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
  • The employee is prohibited from working by the employer due to health concerns related to the transmission of COVID-19.

What are the entitlements?

Full-time Food Sector Workers are entitled to 80 hours of supplemental paid sick leave. A full-time worker is defined as either an employee (1) defined by the employer as “full-time” or (2) who worked an average or 40 hours in the two weeks preceding the date the employee takes the sick leave.

For employees who do not qualify as full-time but do have a normal weekly schedule, their hourly entitlement is the amount of the employee’s normal weekly schedule over a two-week period.

For employees who do not qualify as full-time and work a variable schedule, their hourly entitlement is 14 times the average number of hours they worked each day for the employer in the six months preceding the date the leave is taken (or during their entire employment if the employee has worked for less than six months).

The supplemental paid sick leave is in addition to the sick leave available to employees under the California state paid sick leave law.  Employees have the right to determine how many hours of supplemental paid sick leave to use. An employer may not require an employee to exhaust other paid or unpaid leave entitlements before using supplemental paid sick leave under this order.

An employer is not required to provide this supplemental paid sick leave to a Food Sector Worker if the employer, as of the effective date of the order, provides paid leave to the employee for these COVID-19 reasons, and the benefit is greater than or equal to the value of this supplemental paid sick leave.

Rate of Pay for Supplemental Paid Sick Leave

Food Sector Workers taking supplemental paid sick leave must be paid at the greater of the following:

  • The employee’s regular rate of pay for the last pay period before the leave is taken;
  • The state minimum wage; or
  • The local minimum wage.

Mirroring the FFCRA, the total amount paid is capped at no more than $511 per day and $5,110 in the aggregate over the period the order is in effect.

Additional Requirements

By not later than April 23, 2020, the Labor Commissioner is required to make public a model supplemental sick leave notice for employers to post.  If food sector workers do not frequent the workplace, the employer may transmit the notice to the employees electronically.

Besides the supplemental paid sick leave requirements, employees working in a food facility as defined by the health and safety code must be permitted to wash their hands every 30 minutes and additionally as needed.

The supplemental paid sick leave requirements will remain in effect for the duration of any statewide shelter-in-place orders issued by the State Public Health Officer. However, if a Food Sector Worker is taking supplemental paid sick leave at the time the orders expire, the employer must permit the employee to take the full amount of leave to which the employee would have otherwise been entitled.

Jackson Lewis will continue to track this and other orders at the state and local level. Jackson Lewis has a dedicated team tracking and responding to the developing issues facing employers in this difficult time. If you need guidance in handling the complicated issues pertaining to COVID-19, contact a Jackson Lewis attorney to discuss.

As California employers continue their efforts to weather this difficult and economically uncertain time, the state is also taking steps to assist California workers affected by the COVID-19 crisis. Governor Gavin Newsom recently announced several new initiatives to support California workers who have been affected by COVID-19.

Expansion of Call Center Hours at the Employment Development Department to Process Unemployment Insurance Claims

Pursuant to Executive Order N-50-20, California’s Employment Development Department (EDD) is launching a new call center on Monday, April 20, 2020, that will operate seven days a week from 8:00 a.m. to 8:00 p.m. This is in response to the Governor’s order that the agency “take necessary action to ensure staffing sufficient to process unemployment insurance benefits on a timely basis to ensure eligible individuals receive payments efficiently.” The Unemployment Insurance Branch has added staff and will now have 1,340 employees, including 740 EDD employees and 600 employees from across state government, available to assist eligible individuals with questions about filing and/or their claims.

With record numbers of unemployment claims being filed as a result of COVID-19, added staff and call center hours may have a significant impact on those workers who are seeking unemployment benefits due to job loss or reduction of hours.

The Governor also directed the EDD to establish an efficient electronic means of expediting access to the EDD’s Work Share program to avert potential layoffs.

Assistance for Individuals Applying for Pandemic Unemployment Assistance

Starting on April 28, 2020, the EDD will also have a one-stop-shop for individuals applying for unemployment insurance and the new federal Pandemic Unemployment Assistance (PUA) program.

The PUA program will provide federally funded benefits in addition to the traditional state Unemployment Insurance program for individuals out of work or partially unemployed due to COVID-19, including those who are self-employed, individuals who may lack sufficient work history, gig workers and independent contractors. Importantly, PUA benefits will be issued within 24-48 hours, rather than the typical 21 days ​for regular unemployment insurance claims.

Disaster Relief Assistance

The Governor also announced the creation of a $75 million Disaster Relief Fund that will provide support to undocumented Californians affected by COVID-19, including those who are ineligible for unemployment insurance and other benefits. The assistance is the result of a partnership between the State and philanthropic partners, who have committed to raising an additional $50 million in funds. In passing the Order, Governor Newsom emphasized that California is the most diverse state in the nation and stated that it will support all Californians during this crisis.

Jackson Lewis is continually monitoring COVID-19 developments at the state and local level. Jackson Lewis has a dedicated team tracking and responding to the developing issues facing employers in this difficult time. If you need guidance in handling the complicated issues pertaining to COVID-19, contact a Jackson Lewis attorney to discuss.

As COVID-19 cases grow in California, lawsuits are already being filed against essential business employers, alleging companies did not or are not taking proper precautions to protect employees from the pandemic.  Employers are doing all they can to ensure they are complying with all applicable laws and regulations in these uncertain, historically significant times. With the economy at an all-time low, most companies, including essential businesses, are also losing profits at an unprecedented rate and struggling to stay operational.

Thankfully, California has established numerous resources to assist employers through this difficult time, such as guidelines for employers to maintain healthy and safe workplaces,  programs to avoid layoffs, assistance for employers dealing with closures and layoffs, temporary suspension of notice requirements to employees that have been furloughed, tax assistance and other financial assistance.  An overview of the relevant programs follows.

Guidelines for Employers to Maintain Workplace Health and Safety

The California Occupational Safety and Health Administration has provided guidance on requirements to protect workers from coronaviruses, including industry-specific health and safety guidance and model written plans and programs.  The guidance can be found here.

The Center for Disease Control and Prevention (CDC) has also established guidance to assist employers to plan, prepare and respond to COVID-19.  The pertinent recommendations include guidelines such as:

  • Precautions to reduce transmission among employees: such as actively encourage sick employees to stay home, separating sick employees, and educating sick employees regarding how they can reduce the spread of COVID-19;
  • Managing healthy business operations: such as implementing flexible sick leave and supportive policies and practices, assessing the employer’s essential functions and reliance that others and the community have on its services or products, determine how to continue operations if absenteeism spikes, and establishing policies for social distancing; and
  • Maintaining a healthy work environment by increasing ventilation rates and the percentage of outdoor air that circulates into the systems, as well as establishing sanitization practices to maintain a clean and sanitized work environment.

The CDC guidance and applicable resources can be found here.

Unemployment Insurance Work Sharing Program to Avoid Layoffs

Employers who are experiencing a slowdown in businesses or services as a result of COVID-19 may apply for California’s Unemployment Insurance Work Sharing Program.  This program allows employers to evaluate alternatives to layoffs to avoid the cost of recruiting hiring and retaining employees later.  Some alternatives include retaining trained employees by reducing their hours and wages which may be partially offset with unemployment benefits.

Qualifying employers must meet all of the following requirements:

  • Be a legally registered business in California;
  • Have an active California State Employer Account Number;
  • At least 10 percent of the employer’s regular workforce or a unit of the workforce, and a minimum of two employees, must be affected by a reduction in hours and wages;
  • Hours and wages must be reduced by at least 10 percent and not exceed 60 percent;
  • Health benefits must remain the same as before, or they must meet the same standards as other employees who are not participating in Work Sharing;
  • Retirement benefits must meet the same terms and conditions as before, or they must meet the same as other employees not participating in Work Sharing;
  • The collective bargaining agent of employees in a bargaining unit must agree to voluntarily participate and sign the application for Work Sharing;
  • Identify the affected work units to be covered by the Work Sharing plan and identify each participating employee by their full name and Social Security number;
  • Notify employees in advance of the intent to participate in the Work Sharing program.
  • Identify how many layoffs will be avoided by participating in the Work Sharing program; and
  • Provide the EDD with any necessary reports or documents relating to the Work Sharing plan.

There are certain restrictions on participation.  Comprehensive information relating to the IU work-sharing program can be found here.

California Rapid Response Program for Employers Dealing with Closures and Layoffs

Non-essential employers who are closed or employers who have to conduct major layoffs as a result of COVID-19 may apply for assistance through California’s Rapid Response program.  Rapid response is a business-focused program designed to assist companies facing potential layoffs or plant closures.   Rapid response teams will meet with the employer to discuss the employer’s needs in an attempt to avert potential layoffs and provide any available immediate on-site services to assist workers facing job losses.

More information about the Rapid Response Program and how to get started can be found here.

Temporary Suspension of The Worker Adjustment and Retraining Notification Act Notice Requirements

In light of COVID-19 layoffs, California Governor Gavin Newsom issued an Executive Order which temporarily suspends the 60-day notice requirement in the California Worker Adjustment and Retraining Notification (“WARN”) Act for qualifying employers. The California WARN Act applies to employers that employ or have employed 75 or more full time or part-time workers in the preceding 12 months. (Cal. Lab Code section 1400 (a)) and generally requires employers to provide advance notice in case of qualified closings and layoffs.

The suspension was intended to permit employers to act quickly in order to mitigate or prevent the spread of Coronavirus. The Executive Order does not suspend the California WARN Act in its entirety, nor does it suspend the law for all covered employers. The Executive Order only suspends the California WARN Act’s 60-day notice requirement for those employers that satisfy the Order’s specific conditions. Further, we note, employers seeking to rely on the Executive Order’s suspension of the California WARN Act’s 60-day advance notice requirement must still satisfy a number of conditions, including providing notices to the EDD, the Workforce Development Board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs.

Further guidance on the conditional suspension of the Cal- WARN Act Notice Requirements can be found here.

Tax Assistance

Employers directly affected by COVID-19 may request up to a 60-day extension to file state payroll reports and deposit state payroll taxes without penalty or interest. Employers must include the impact of COVID-19 in the written request for the extension and the request must be received within 60 days from the original past-due date of the payment or return.

More information explaining Employer Resources can be found here.

Additional Assistance Funds for Workers and Businesses

In response to COVID-19, the Governor also announced the availability of an additional $17.8 million in Workforce Innovation and Opportunity Act funds to help impacted workers and businesses with re-employment, supportive services for basic needs, and Rapid Response activities.

$10 million of the funds were set aside to assist workers most impacted by COVID-19.  The remaining $7.8 million was has been set aside to help workers and businesses in industries most impacted by COVID-19 including entertainment, hospital, travel, and leisure.

More information about the funds and how to determine if employers’ are eligible for services can be found here.

Jackson Lewis is also here to assist you. We are proud of our COVID-19 task force, working day in and day out around the country to provide nationwide coverage of guidance and legislation to assist employers in staying ahead of the curve with respect to the quickly changing laws. With daily briefings and webinars, we make sure our clients are continually up to date with the regulations and legislation. To subscribe to our daily COVID-19 briefings, click here.

Two California cities, San Francisco and San Jose adopted emergency ordinances to expand paid sick leave and emergency Family Medical Leave Act (FMLA) leave benefits.  The ordinances cover gaps under federal law by expanding leave benefits under the Families First Coronavirus Response Act (FFCRA) to employers with more than 500 employees.

The ordinances cover most gig workers and independent contractors. Under the ordinances, all workers are presumed to be employees unless their employer can affirmatively demonstrate otherwise in accordance with Labor Code section 2750.3 also known as AB-5.

Both ordinances grant up to 80 hours (two-weeks) of emergency paid sick leave to workers not yet covered by federal law.   The ordinances cover large private companies as well as nonprofits employing more than 500 employees.

San Jose’s ordinance specifically applies to employees who are employed by an employer and have worked at least two (2) hours or more within the city, though it does not specify over what period of time. The San Jose ordinance defines an “employer” as someone subject to the Business License Tax Chapter 4.76 of the Municipal Code or maintains a facility within the city. Whereas under the San Francisco ordinance, eligible employees must have worked fifty-six (56) or more hours of work within the geographic boundaries of the city during the 365 days immediately preceding the effective date of the ordinance.

To qualify for these emergency sick leave protections, an employee must be under a quarantine or isolation order, experiencing symptoms related to COVID-19, caring for an individual with a suspected or confirmed case of COVID-19, or watching a child whose school or daycare has been closed due to COVID-19.

The ordinances apply to essential businesses and businesses that are still operating remotely but do not apply to businesses that have already closed.  Furthermore, in the San Francisco ordinance, employees who are defined as “healthcare providers” under federal law, including medical doctors and nurse practitioners, are generally exempt from these paid sick leave entitlements.

Like the federal law, the San Jose ordinance sets a cap on amounts paid in supplemental sick leave. Under the San Jose ordinance, an employer will pay an employee for properly used sick leave at the employee’s regular rate of pay up to $511 a day not to exceed an aggregate of $5,110. Notwithstanding the foregoing, the employer may pay an employee using sick time to care for another person at two-thirds of the employee’s regular rate of pay up to $200 a day not to exceed an aggregate of $2,000. The San Francisco ordinance does not currently contain a cap though that may change in the final approved version of the ordinance.

The City of Los Angeles City Council recently passed a similar ordinance. However, immediately following the Los Angeles mayor’s approval of the ordinance, he issued an order that superseded the ordinance and added several exemptions. The mayors of both San Francisco and San Jose have expressed support for the ordinances but there is still potential for changes to be made. During a recent City Council meeting, San Jose’s mayor articulated that he and the other councilmembers will be engaging in ongoing discussions with the business community given that this emergency ordinance was quickly drafted without much time to fully understand its impact on the business community. San Francisco Mayor London Breed has expressed general support for the ordinance.

Both ordinances have urgency clauses and therefore will go into effect shortly after they are approved.

Jackson Lewis will continue to monitor emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

Postscript – The San Jose ordinance has now become final. See the final ordinance here.

On March 27, 2020, the City of Los Angeles City Council passed an ordinance requiring that employers with 500 or more employees nationally offer 80 hours of Supplemental Paid Sick Leave to employees who perform work within the geographic boundaries of the City of Los Angeles for various COVID-19 related reasons.  Please see our March 29,2020 article for a summary of the ordinance passed by the City of Los Angeles City Council.

However, on April 7, 2020, Mayor Eric Garcetti largely replaced and superseded the ordinance passed by the City Council through Public Order under the Mayor’s emergency authority.  Below is a summary of the Mayor’s Public Order.  The Public Order is effective on April 10, 2020.

Covered Employer

The Public Order applies to employers that have either: (1) 500 or more employees within the City of Los Angeles, or (2) 2,000 or more employees within the United States. This is a change from the original ordinance which applied to employers of 500 or more nationally.

Covered Reasons

Covered reasons for the Supplemental Paid Sick Leave in the Public Order still include the following reasons as found in the City Council’s passed version:

  1. Time off because a “public health official or health provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19;”
  2. The employee takes time off because they are at least 65 years old or has a health condition that puts them at risk;
  3. The employee needs to care for a family member who is not sick, but who public health officials or healthcare providers have required or recommended self-quarantine; or
  4. The employee needs to provide care to a family member whose senior care provider, school, or childcare provider is closed.

Both the ordinance and the Public Order prohibit employers from requiring a doctor’s note or other documentation to use the Supplemental Paid Sick Leave.

Caps on Payments

The Public Order caps the total amount to be paid to $511 per day and $5,110 in the aggregate.

Employer Offset

An employer’s obligation to provide the 80 hours of Supplemental Paid Sick Leave under the Public Order is reduced for every hour an employer allowed an employee to take paid leave in an amount equal or greater than the requirements outlined in the Public Order, not including previously accrued hours.

New Exemptions Found in the Public Order

The City Council Ordinance exempted only first responders from the provision of paid sick leave. The Mayor’s Public Order includes the following broader list of exemptions:

Emergency and Health Services Personnel

Employers of emergency personnel as defined by the City’s prior Shelter-In-Place Order or health care workers as defined under the Government Code.

Critical Parcel Delivery

Employers that provide global parcel delivery services, which has been deemed an essential emergency service.

Generous Leave

Employers who offer paid leave or paid time off that provides a minimum of 160 hours of paid leave annually.

New Business Exemption

Businesses that opened in the City and businesses that relocated to the City during the period September 4, 2019, through March 4, 2020. To qualify for the exemption, the business could not have been a business within the City of Los Angeles in the 2018 tax year. However, this exemption does not apply to construction businesses or film producers.

Government

Government agencies working within the course and scope of their public service employment.

Closed Businesses and Organizations

Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave.

Collective Bargaining

A collective bargaining agreement in place on the effective date of the Public Order may supersede the provisions of this Order if it contains COVID-19 related sick leave provisions. When the collective bargaining agreement expires or is otherwise open for renegotiation, the provisions of the Public Order may only be expressly waived if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.

* * *

The Public Order remains in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

Jackson Lewis will continue to monitor emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.