Cities in the Bay Area Expand Paid Sick Leave for Employees of Large Employers

5 min

The cities of San Francisco and San Jose will require employers with 500 or more employees nationwide to provide supplemental paid sick leave for COVID-19-related reasons to certain employees who are not eligible for paid leave under the federal Families First Coronavirus Response Act (FFCRA). Healthcare providers and first responders are not covered. Unlike the FFCRA, there is no government funding for these city-mandated paid leave benefits; employers are required to bear the entire cost.

San Francisco's Public Health Emergency Leave

The San Francisco ordinance will require covered employers to provide up to an additional eighty (80) hours of supplemental paid sick leave to eligible employees that can be used only for the following reasons:

  1. The employee is unable to work because of a federal, state, or local quarantine/isolation order related to COVID-19. This includes, but is not limited to, an employee who cannot work because of government orders requiring residents to stay in their homes, or shelter-in-place orders issued in other Bay Area jurisdictions;
  2. A healthcare provider advises that the employee self-quarantine;
  3. The employee is experiencing symptoms associated with COVID-19 and is seeking medical diagnosis;
  4. The employee needs to take care of a family member who is unable to work because of a federal, state, or local quarantine order; advised by a healthcare provider to self-quarantine; or experiencing symptoms associated with COVID-19 and is seeking medical diagnosis;
  5. The employee needs to provide care for a family member whose school or place of care has been closed or the care provider of such family member is unavailable because of the public health emergency; or
  6. The employee is experiencing any other substantially similar condition specified by the Local Health Officer, or under Section 5102(a)(6) of the FFCRA, by the United States Secretary of Health and Human Services.

To be eligible for the supplemental paid sick leave, employees (including part-time, temporary, and participants in Welfare-to-Work programs) must have performed 56 or more hours of work within the boundaries of the City of San Francisco during the 365 days preceding the pending effective date of the ordinance.

For nonexempt employees, supplemental paid sick leave is paid at the employee's regular rate of pay. For exempt employees, supplemental paid sick leave is calculated in the same manner as the method used by the employer to calculate wages for other forms of paid leave.

Pending mayoral approval, the ordinance is expected to take effect immediately upon signing and will expire on the earlier of (1) the 61st day following enactment, unless reenacted, or (2) termination of the Public Health Emergency. Once the ordinance is enacted, the Office of Labor Standards Enforcement will have seven days to publish a notice to employers. Within three days following the Office's publication, employers will be required to provide this notice in a manner calculated to reach all employees within three days.

The full text of the proposed ordinance can be found here. Note that this version is subject to change prior to mayoral approval.

San Jose COVID-19 Paid Sick Leave Ordinance

The San Jose ordinance also requires covered employers to provide up to an additional eighty (80) hours of supplemental paid sick leave to employees providing essential services within the geographic boundaries of the city. The San Jose ordinance applies to all employers not otherwise covered by the FFCRA, including small businesses (fewer than 50 employees) that qualify for exemption from the FFCRA.

This supplemental leave can be used only for the following reasons:

  1. The employee is subject to quarantine or isolation by federal, state, or local order related to COVID-19, or is caring for someone quarantined or isolated because of COVID-19;
  2. A healthcare provider advises that the employee self-quarantine to prevent the spread of COVID-19;
  3. The employee is experiencing symptoms associated with COVID-19 and is seeking medical diagnosis; or
  4. The employee is caring for a minor child because a school or daycare is closed because of COVID-19.

To be eligible, the employee must have worked at least two hours for the same employer within the geographic boundaries of the City of San Jose and must be required to leave their residence to perform essential services, as defined in the Santa Clara Shelter in Place Order issued on March 16, 2020. (Note that there was a new and more restrictive Santa Clara Shelter in Place Order issued on March 31, 2020, so it is unclear whether the ordinance mistakenly referred to the March 16, 2020 order, or whether it was intended that the older order's definitions apply.)

Employees who can work from home are not eligible for paid sick leave under the new ordinance. Part-time employees are eligible for an amount equal to the number of hours the employee works over an average two-week period.

Supplemental paid sick leave is paid at the employee's regular rate of pay and may be capped at $511 per day and $5,110 in the aggregate. Employees using sick time to care for another person may be compensated at a rate that is two-thirds their regular rate of pay, up to $200 a day and $2,000 in the aggregate.

Employers that already provide employees with some combination of paid personal leave equivalent to the amount of leave required by the ordinance will be exempted from its coverage. Employers that provide paid personal leave less than the amount of leave required by the ordinance will need to provide the difference between the amount provided in their current paid personal leave policy and the amount of leave required by the new ordinance.

This ordinance was signed by the mayor and is effective as of April 7, 2020 and will remain in effect until December 31, 2020. The full text of the ordinance can be found here.