The Families First Coronavirus Response Act (FFCRA), requiring employers with 50-500 employees1 to provide supplemental paid sick leave and paid family leave to their employees, and California's statewide COVID-19 supplemental paid sick leave requirement expired on December 31, 2020. While employers may voluntarily continue to provide FFCRA and receive tax credits through March 31, 2021, the FFCRA mandates are now voluntary for employers to continue absent federal legislative action. Despite this, numerous California counties and cities have extended their COVID-19 paid sick leave ordinances and imposed additional requirements for employers. To date, these include: Los Angeles (City and County), City of Long Beach, Sacramento (City and County), San Francisco, City of Oakland, San Mateo County, Sonoma County, Santa Rosa, and San Jose.
City of Los Angeles. Los Angeles Mayor Eric Garcetti recently revised an order requiring an employer to provide COVID-19 Supplemental Paid Sick Leave (SPSL) if it has 500 or more employees in the city or 2,000 or more employees nationally. The February 10, 2021 revised order expanded coverage and provides SPSL benefits to employees employed with the same employer for 60 days, and expanded coverage to employees hired on or after March 5, 2020. Most importantly, the revised order mandates that employers calculate SPSL based on the employee's respective two-week average pay over the last 60 days of employment. The order remains in effect until two calendar weeks after the expiration of the County of Los Angeles local emergency period.
County of Los Angeles. On January 26, 2021, Los Angeles County extended its COVID-19 paid sick leave ordinance to continue until two calendar weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Los Angeles County Board of Supervisors. The amended ordinance applies retroactively effective January 1, 2021 and expands coverage. The new ordinance mirrors the prior ordinance, and applies to: (1) employers with 500 or more employees nationally, and (2) employees who perform work within the unincorporated areas of the county. Note that an employee who has exhausted their supplemental paid sick leave under the prior ordinance or FFCRA by December 31, 2020 is not eligible for additional supplemental sick leave.
City of Long Beach. The Long Beach City Council enacted an ordinance providing COVID-19 paid sick leave to all employees who perform work within the geographic boundaries of the City of Long Beach for an employer with 500 or more employees nationally. The ordinance does not contain an expiration date. Rather, the City Council will determine the sunset date of the ordinance based on the City Manager's 90-day reports. The deadline for the next report is March 6, 2021, at which time the City Council will determine if it will continue the ordinance.
City of Oakland. The City of Oakland retroactively extended its Emergency Paid Sick Leave Ordinance to all employers that have employees working in the City of Oakland. Certain smaller employers are exempted from the ordinance's requirements. Notably, the amended ordinance will remain in effect until the city's declaration of COVID-19 emergency expires, yet it does not mandate additional leave. Employers may credit any federal, state, or local paid sick leave provided prior to January 1, 2021 against their obligations under the ordinance.
City and County of Sacramento. The city and county of Sacramento have extended their respective ordinances requiring employers with 500 or more employees nationally to provide additional paid sick leave, through March 31, 2021.
City and County of San Francisco. San Francisco enacted the Public Health Emergency Leave Ordinance (PHELO), requiring employers with 500 or more employees nationwide to provide supplemental paid sick leave. The San Francisco Board of Supervisors has reauthorized this emergency ordinance through April 12, 2021. The current version of the PHELO includes additional changes that will apply prospectively, including: (1) PHELO will not apply to some 501(c)(3) non-profit organizations; (2) Eliminating the provision that allowed employees to take leave regardless of whether and when they were scheduled to work; and (3) Providing that employees will only be able to use PHELO if they actually miss work due to a covered reason.
City of San Jose. The City Council of San Jose implemented its local paid sick leave ordinance on April 7, 2020, requiring private employers not covered by the FFCRA to provide supplemental paid sick leave to its qualified employees. The City Council recently approved an extension of the expiration of the ordinance to June 30, 2021.The amended ordinance is retroactive to January 1, 2021 and expands coverage to all employers with employees working in the city (regardless of the size of the employer). The ordinance states that 80 hours is the total amount available to employees for the period of April 2, 2020 to June 30, 2021.
County of San Mateo. San Mateo County extended its supplemental paid sick leave ordinance that applies to the unincorporated areas of the county through June 30, 2021.
City of Santa Rosa. The City of Santa Rosa passed a new local urgency ordinance that temporarily reinstated employer-provided COVID-19-related paid sick leave for employees within Santa Rosa city limits. The ordinance applies to all employers within city limits, regardless of size or sector, through March 31, 2021. The reinstated ordinance does not reset or replenish an employee's leave bank if an employee has already used the leave provided under the FFCRA or the previous City of Santa Rosa ordinance.
County of Sonoma. On February 9, 2021, the Board of Supervisors enacted an urgency ordinance that immediately expanded coverage under its emergency paid sick leave ordinance (EPSL), requiring all employers with 500 or more employees and all employers in the county's unincorporated areas to provide supplemental paid sick leave. Significantly, although the ordinance was extended through June 30, 2021, it is a one-time benefit and employers do not need to provide a new bank of leave to employees who have exhausted EPSL. Employers must also provide notice to employees of their rights under the ordinance and the county has made the notices available here.
COVID-19-related paid sick leave laws remain dynamic and complex. At the federal and state level, it is unclear whether the mandates of the FFCRA and SPSL will be extended. Other localities may also amend their supplemental paid sick leave ordinances in the absence of federal or state action. Reed Smith's labor and employment team will continue to monitor the legal landscape as the situation evolves.
1 Small businesses with fewer than 50 employees qualified for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements jeopardized the viability of the business as a going concern.
Originally Published by Reed Smith USA, February 2021
This article is presented for informational purposes only and is not intended to constitute legal advice.