Seyfarth Synopsis:Oakland, San Francisco, and San Jose all passed emergency paid sick leave ordinances mandating employers to provide supplemental leave to employees unable to work as a result of the COVID-19 public health emergency.However, Oakland’s COVID-19 Emergency Paid Sick Leave Ordinance is broader, impacting a larger pool of employers and adding costs to employers when layoffs occur.
We previously wrote about San Francisco and San Jose’s emergency paid sick leave ordinances here and here. On May 12, 2020, Oakland’s City Council joined these cities by enacting its own emergency ordinance mandating supplemental paid sick leave for certain COVID-19 related reasons. The ordinance went into effect immediately upon being passed on May 12, and the final version was made available on May 19.
Interaction With Federal Benefits
Oakland’s ordinance is similar to those enacted in San Francisco and San Jose in that it requires covered employers to provide eligible employees with up to 80 hours (or a pro-rated amount based on hours worked over a two week period if not full-time) of emergency paid sick leave to use for covered reasons. However, in Oakland, employers who fall under the Families First Coronavirus Response Act (FFCRA) are also subject to Oakland’s COVID-19 Emergency Paid Sick Leave Ordinance.
Such employers may credit supplemental sick leave benefits paid out under the FFCRA towards compliance with the local ordinance.
If an employer is already providing employees with leave pursuant to the FFCRA in an amount equal to or greater than what is required under Oakland’s new law, they are not obligated to provide any additional emergency sick leave. In determining whether additional leave is necessary, employers should be aware that part-time employees are entitled to emergency leave at their regular hourly rate under the Oakland ordinance, but only two-thirds their regular rate under the FFCRA. Accordingly, those employers would have to make up the difference.
Payout of Accrued Sick Leave Upon Layoff
The Oakland ordinance significantly deviates from its neighboring cities in requiring the payout of accrued leave, as detailed below.
Oakland’s new paid sick leave law, which sunsets on December 31, 2020, unless extended via City Council resolution, comes with a potential added cost to employers not present in the other cities’ ordinances. In short, Oakland’s emergency ordinance now requires employers to pay employees for non-emergency sick leave accrued prior to any layoffs.
The provision entitled “Use of Non-Emergency Paid Sick Leave Prior to Layoffs” mandates that employers compensate employees who are laid off for their unused sick leave accrued pursuant to Oakland’s existing paid sick leave ordinance (which has a 72-hour cap). Excluded from this payout is any emergency paid leave remaining in an employee’s bank at the time of the layoff.
Neither the existing nor the new ordinance provide a definition of “layoff.” Oakland’s emergency ordinance contemplates a model notice to employees and regulations, which may provide more guidance. However, neither has yet been issued.
San Jose and San Francisco
San Jose, unlike Oakland and San Francisco, did not have an existing paid sick leave ordinance prior to COVID-19. Therefore, San Jose employers need not worry about paying any sick leave upon the separation of an employee.
Additionally, while San Francisco already had a paid sick leave ordinance in effect prior to COVID-19, it does not require employers to pay out accrued unused paid sick leave upon the employee’s separation, nor does the city’s Public Health Emergency Leave Ordinance change that.
We are continuing to monitor various state and local COVID-19 developments. If you have questions, please be sure to visit Seyfarth’s COVID-19 resource center, or contact one of our experienced attorneys directly.