CALIFORNIA: Oakland and Long Beach expand paid sick leave
Following the trend in cities across California, Oakland and Long Beach are the latest to adopt supplemental emergency paid sick leave (EPSL) ordinances related to COVID-19 (coronavirus), with both laws effective immediately. We previously reported that San Francisco, San Jose, Los Angeles, and Los Angeles County recently passed ordinances providing similar EPSL and that California Governor Gavin Newsom issued statewide EPSL protections for food sector workers. Below are summaries of the ordinances for Oakland and Long Beach, respectively.
The Oakland emergency paid sick leave ordinance grants up to 80 hours of emergency paid sick leave (prorated for part-time workers) for the same covered reasons as under the federal Families First Coronavirus Response Act (FFCRA). Workers are eligible if they performed at least two hours of work after February 3, 2020, within the city of Oakland, including the Port of Oakland. In addition to the leave reasons under the FFCRA, this ordinance allows time off because the employee (1) is at least 65 years old; (2) has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened immune system; (3) has any condition identified by an Alameda County, California, or federal public health official as putting an individual at heightened risk of serious illness or death if exposed to COVID-19; or (4) has any condition certified by a health care professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19. Payment is capped at a maximum of $511 per day and $5,110 in total. Unlike the FFCRA, the amount of pay isn’t reduced during leave to care for others. You cannot prevent employees from using Oakland’s EPSL for lack of documentation.
The city is required to “expeditiously” publish an EPSL notice on its website. It’s unclear where it will appear when it becomes available; currently the web page for Oakland EPSL contains only a link to the ordinance. You must provide the notice to employees within three days of it becoming available, using a distribution method intended to reach all employees (e.g., posting in a visible place in the workplace, via email, or in a visible place on the company’s intranet). You must provide the notice in all languages spoken by more than 10 percent of your employees.
The ordinance provides an exemption for health care providers, emergency responders, and small employers. Employers are also exempt if after February 3, 2020, they allow employees to accrue at least 160 hours of paid personal time and allow immediate access to at least 80 hours of that time for the same reasons as federal supplemental EPSL. Another exemption is available to employers that give immediate access to at least 80 hours of paid personal leave in addition to any paid leave otherwise required by a collective bargaining agreement, employment contract, or public policy.
Unlike other recently passed city EPSL ordinances, employers covered by the FFCRA must also provide emergency paid sick leave under Oakland’s EPSL ordinance, although sick leave hours provided under the FFCRA are credited against their Oakland EPSL obligation. An additional distinction requires that if the employer lays off an employee, it must pay the employee for all non-emergency paid sick leave (but not unused EPSL) accrued under Oakland’s existing paid sick leave ordinance, immediately upon separation. The new EPSL ordinance is set to expire on December 31, 2020, unless extended.
On May 19, 2020, the City of Long Beach adopted the COVID-19 paid supplemental sick leave ordinance to provide supplemental EPSL benefits to those not covered by the FFCRA. The law is effective immediately, covers workers who perform any work in the City of Long Beach for an employer with 500 or more employees nationally, and currently provides no end date but instead will be reassessed every 90 days to determine effectiveness and whether the provisions are still necessary based on the City’s recovery from the health and economic impact of COVID-19.
Mirroring other local EPSL ordinances, workers are entitled to up to 80 hours of EPSL (prorated for part-time workers) for the same covered reasons as under the FFCRA, unless they can work from home and are healthy enough to do so. Leave must be paid at the employee’s regular rate of pay, except that leave to care for another person may be paid at two-thirds the employee’s regular rate. Payment is capped at $511 per day and $5,110 in total for the employee’s own illness, and $200 per day and $2,000 in total when caring for another person. Reasonable notice of the leave from employees may be required, but only if the leave is foreseeable. You cannot require workers to find a replacement as a condition of approving leave. You also cannot require a doctor’s note or other documentation for the use of EPSL.
Health care providers and emergency responders are exempt from the ordinance. Employers who offer a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually are also exempt. In addition, the obligation to provide this supplemental sick leave is reduced by every hour an employer provided an employee with paid leave on or after March 4, 2020, in an amount equal to or greater than the requirements and for any of the purposes set forth by the city ordinance, not including any previously accrued hours. The city’s supplemental EPSL must be offered in addition to any previously accrued paid leave benefits.
Tips: If your employees perform work within the cities of Oakland (including the Port of Oakland) or Long Beach, review the applicable EPSL ordinance to ensure you comply with the requirements. Questions? Contact your Vigilant Law Group employment attorney.