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.

The Center for Disease Control (“CDC”) recently began recommending the use of non-medical masks or “cloth face coverings” to help stem the spread of COVID-19. According to the CDC’s recommendation, cloth face coverings are recommended in public settings where other social distancing measures are difficult to maintain (e.g. grocery stores and pharmacies). The CDC has made clear that the cloth face coverings guideline for non-medical settings are not surgical masks or N-95 respirators.

In addition to the CDC’s recommendation, on April 1st, the California Department of Public Health offered guidance regarding face coverings. The Department was careful to specify that should counties choose to implement policies promoting the use of face coverings, they need to be careful not to increase the demand for medical-grade respirators, such as N95 and surgical masks.

In response to the Department’s guidance, the County of San Diego was the first to issue an Addendum to the Order of the Health Officer and Emergency Regulations. The order sets forth that effective April 4th, all employees who may have contact with the public in any grocery store, pharmacy/drug store, convenience store, restaurant and other business establishments that serve food shall wear a cloth face covering.

Riverside County then followed with a broader order requiring that all persons, including essential workers, wear face coverings. Riverside’s order specifies that face coverings include scarves made of dense fabric, bandanas, neck gaiter, or other fabric face coverings. In compliance with the Department of Public Health guidance, the order specifically discourages individuals, including essential workers, from using personal protective equipment, including N95 masks, for non-medical reasons.

The City of Los Angeles also issued an executive order that mandates essential workers defined by the order to wear face coverings and requires employers with providing face coverings to their employees. Employers are required to allow their essential workers to wash their hands every 30 minutes. The Los Angeles order also requires individuals going into essential businesses such as grocery stores to wear face coverings for worker safety.

Other counties are only strongly recommending the use of face coverings for the time being. These recommendations could become mandates, however, as the incidents of coronavirus increase.

As a proactive measure, employers deemed essential during shelter-in-place orders should continue to review orders regarding face coverings to ensure their employees are complying with county mandates and considering CDC guidelines while in their scope of work.

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.

Due to the ongoing impact of COVID-19 pandemic on California’s judicial branch, The Judicial Council of California met yesterday and issued emergency rules related to the COVID-19 Pandemic.

Overall, the Judicial Council of California issued eleven different orders, however, three of them will directly affect employment cases.

Statute of Limitations Tolls for All Civil Actions

Most importantly, pursuant to Emergency Rule No. 9, the statute of limitations is tolled for all causes of action from April 6, 2020, until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.

Generally, the statute of limitations for various employment law claims vary.  The California legislature recently passed a law extending employees’ statute of limitations to file administrative complaints of discrimination with the California Department of Fair Employment and Housing to three (3) years.  After the DFEH complaint is filed and a Right to Sue is obtained, employees have one (1) year from the Right to Sue Notice from the Department to file a discrimination, harassment or retaliation lawsuit.    Pursuant to this order, if an employee’s statute of limitations would have run between April 6, 2020, and on (through 90 days after the State of Emergency is lifted), their time to file their lawsuits is tolled indefinitely for the time being.

What does this mean for employers? While employers may see a slowing of claims at this time, they should anticipate an overflow of claims as soon as the Shelter in Place order is lifted. This is a good time for employers to verify that their EPLI policies are up to date and provide full coverage in anticipation of the new claims.

Five Year Statute Limitation for Bringing an Action to Trial Extended by Six Months

Currently, in California, a plaintiff who files a lawsuit must bring that action to trial within five (5) years after it is commenced against the defendant.  An action “commences” on the date the original Complaint is filed with the court.  If the action is not brought to trial within five years, dismissal is mandatory on the motion of any party or on the Court’s own motion.  Pursuant to Emergency Rule 10, plaintiffs will now have five years and six months to bring their cases to trial which may cause delays in matters currently in litigation.

Electronic Depositions

Lastly, pursuant to Emergency Rule 11, a party or non-party deponent to appear at deposition remotely through electronic means either at their own election or at the election of the deposing party.

Notwithstanding the court delays, trial dates and related cutoffs continue to be impending.  While many California courts are moving trial dates by their own motions, many are preserving all trial-related deadlines in place in accordance with the previous trial dates.   This Emergency Rule will greatly assist parties to continue with conducting discovery as planned notwithstanding the Shelter in Place and Social Distancing regulations.

For more information or for the comprehensive list of orders, do not hesitate to reach out to Jackson Lewis attorney today. 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.

Many employees and employers, in recent weeks, have been adjusting to the new normal of working from home due to California’s Shelter-in-Place order. However, employers and their employees deemed part of the essential critical infrastructure face a different complication. One major issue facing essential employees is handling childcare issues in light of daycare and school closures.

On April 4, 2020, the Governor issued an executive order to help essential critical infrastructure workers obtain necessary childcare to continue working to assist in the State’s COVID-19 response.

The California Department of Education and the Department of Social Services was shared with jointly developing and issuing guidance on prioritizing enrollment for children of essential workers. Moreover, the two departments must develop and issue guidance on health and safety practices including physical distancing. The order indicates that guidance from the two departments is to be issued by April 7, 2020.

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.

On March 27, 2020, the City Council passed an ordinance mandating employers with 500 or more employees nationally offer Supplemental Paid Sick Leave for various COVID-19 related reasons described below.  The ordinance is awaiting Mayor Eric Garcetti’s review and anticipated approval.

Under the ordinance, covered employers must offer 80 hours of Supplemental Paid Sick Leave to employees who perform work within the geographic boundaries of the City of Los Angeles. However, the ordinance caps the total amount to be paid to no more than $511 per day and no more than $5,110 in the aggregate.  An employer may not condition the Supplemental Paid Sick Leave on receipt of a doctor’s note from the employee.

First responders or healthcare providers as defined by the California Government Code are exempted from the ordinance.  Furthermore, provisions of the ordinance may be expressly waived by a collective bargaining agreement.

Covered reasons for the Supplemental Paid Sick Leave include:

  • 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;”
  • The employee takes time off because they are at least 65 years old or has a health condition that puts them at risk;
  • 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
  • The employee needs to provide care to a family member whose senior care provider, school, or childcare provider is closed.

An employer’s obligation to provide the 80 hours of Supplemental Paid Sick Leave shall be reduced for every hour an employer allowed an employee to take leave for any of the covered reasons listed above on or after March 4, 2020.

The ordinance expires on December 31, 2020, unless the City Council takes action to extend the ordinance.

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

Last week, San Francisco announced expanded eligibility for paid sick leave under its Paid Sick Leave Ordinance and announced the Workers and Families First Program, which provides city-funded additional sick leave pay for employees working in San Francisco.

Expanded Use of Paid Sick Leave

Since late 2006, San Francisco has had its own Paid Sick Leave Ordinance. The ordinance requires employers to provide paid sick leave (“PSL”) to all employees (including temporary and part-time employees) who perform work in San Francisco.  San Francisco’s PSL can be used by an employee when they or a family member are ill, injured, or for the purpose of receiving medical care (including preventive care), treatment, diagnosis, or other medical reason.

In response to the COVID-19 pandemic, San Francisco expanded its Paid Sick Leave Ordinance to allow covered employees to use accrued sick leave in the following situations:

  • The employee takes time off work because public health officials or healthcare providers require or recommend an employee isolate or quarantine to prevent the spread of disease;
  • The employee is not working because the employee falls within the definition of a “vulnerable population” under the San Francisco Department of Public Health’s (DPH) March 6, 2020 guidelines or any subsequent updates.  As of March 6, 2020, a “vulnerable population” is a person who is 60 years old or older or a person with a health condition such as heart disease, lung disease, diabetes, kidney disease, or weakened immune system;
  • The employee takes time off work because the employee’s business or a work location temporarily ceases operations in response to a public health or other public official’s recommendation – subject to the “Eligibility for Paid Sick Leave” guidelines above;
  • The employee takes time off work because the employee needs to provide care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or
  • The employee takes time off work because the employee needs to provide care for a family member whose school, childcare provider, senior care provider, or work temporarily ceases operations in response to a public health or other public official’s recommendation.

In addition to expanding the uses of accrued Sick Leave, on March 24, 2020, San Francisco’s Office of Labor Standards Enforcement (OLSE) issued the following guidance regarding the use of San Francisco paid sick leave during the current local health emergency:

  • San Francisco has temporarily suspended Employers from requiring a doctor’s note or other documentation from Employees who use the Paid Sick Leave for COVID-19 reasons for the duration of the COVID-19 Local Health Emergency.
  • Only present employees are eligible for San Francisco’s Paid Sick Leave. Workers that have been laid off by their employer are no longer eligible for paid sick leave.
  • Employees who have their hours reduced or eliminated are not entitled to use accrued paid sick leave to account for such reductions or eliminations.  Employees who remain scheduled to work may continue to use their accrued paid sick leave for any qualifying reason for any portion of their scheduled hours they are unable to work.
  • Employers are not required to pay employees for accrued unused paid sick leave upon the employee’s separation from employment.  However, if an employer is using a Paid Time Off or vacation policy to comply with the Ordinance, California law requires the payout of PTO or vacation upon separation of an employee.
  • If there is a separation from employment, and an employee is later rehired by the employer within one year, previously accrued and unused paid sick leave must be reinstated, and the employee is entitled to use the previously accrued and unused paid sick leave and to accrue additional paid sick leave upon rehiring.

Workers and Families First Program

In addition to amending its Paid Sick Leave Law, San Francisco announced the Workers and Families First Program (“Program”).  This Program will provide PSL to private-sector employees who have been impacted by the COVID-19 pandemic.  The Program includes $10 million in public funding to provide businesses and nonprofits with an additional five days of sick leave pay to employees beyond their existing employer-provided policies.  All San Francisco businesses will be eligible, with up to 20% of funds reserved for small businesses with 50 or fewer employees. The City contributes up to one week (40 hours) at $15.59 per hour (minimum wage) per employee. The employer will pay the difference between the minimum wage and an employee’s full hourly wage.

This Program will be available only if the employee has exhausted their currently available sick leave; has exhausted or is not eligible for federal or state supplemental sick leave, and the employer agrees to extend sick leave beyond current benefits.  Employers must apply with the City to participate in this Program.

The Office of Economic and Workforce Development and the Human Services Agency will administer this Program.

The City also announced a policy allowing public workers an advance of their paid time off in the event that they cannot work due to COVID-19 and related public health recommendations as well as promising $2.5 million to support working artists and arts organizations impacted by COVID-19.

Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19. If you need assistance determining whether your business may remain open or require other assistance navigating the complexities of COVID-19 and the workplace, please contact a Jackson Lewis attorney to discuss.

As California cases of COVID-19 began to rise in early March, several California administrative agencies released information on COVID-19 employment issues, such as administration of paid sick leave, disability benefits, and unemployment insurance. Yet, the Department of Fair Employment and Housing (DFEH)—the agency charged with enforcement of California’s Fair Employment and Housing Act (FEHA), which, among other things, prohibits discrimination, harassment, and retaliation in the workplace—remained silent.

Earlier this week, the DFEH released its own guidance in response to the COVID-19 pandemic. The DFEH’s guidance, styled in the form of Frequently Asked Questions, answers many questions that have arisen as COVID-19 workplace concerns have become ubiquitous, including whether employers may take employees’ temperatures, how much information an employer may reveal about employees who come in contact with the virus, how much employers may ask about an employee’s absence from work, and whether employers may require employees to wear personal protective equipment. The DFEH’s guidance confirms that an employee may use leave under the California Family Rights Act (CFRA) if the employee is ill with COVID-19 or is caring for a family member with COVID-19. The guidance also discusses whether employers should require medical documentation for leaves and accommodations for COVID-19 related disabilities given practical limitations on employees’ abilities to obtain medical documentation. Most of the DFEH’s guidance mirrors guidance previously issued by federal agencies.

The U.S. Equal Employment Opportunity Commission (EEOC) previously released its own guidance for COVID-19 response in the workplace, including whether employers could perform employee temperature checks and how much information an employer could request from employees calling in sick. However, because the EEOC only administers federal law, before the DFEH issued its guidance, it was unclear whether the same direction would apply under California’s stricter FEHA.

Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19. If you need assistance navigating the complexities of COVID-19 and the workplace, please contact a Jackson Lewis attorney to discuss.