On April 7, 2020, the City of San José, California adopted Urgency Ordinance No. 30390 (also known as the COVID-19 Paid Sick Leave Ordinance). The ordinance’s purpose is to extend temporary paid sick leave obligations to employers that the Families First Coronavirus Response Act (FFCRA) exempted from providing emergency paid sick leave.

To which employers does the ordinance apply?

The ordinance incorporates the San José Minimum Wage Ordinance’s definition of “employer.” The Minimum Wage Ordinance defines “employer” to include only those employers that are either: (a) subject to the San José Jose Business License Tax; or, (b) “maintains a facility in” San Jose.

Additionally, the ordinance applies only to those employers that the FFCRA does not require to provide paid sick leave benefits. This includes (a) private employers with 500 or more employees nationwide; (b) certain employers of healthcare providers and emergency responders exempt from the FFCRA; and (c) certain small businesses exempt from the FFCRA.

What employees are eligible for emergency paid sick leave under the ordinance?

The ordinance applies to employees who must leave their homes to perform “essential work.” The ordinance defines “essential work” as the “activities and services” set forth in the Santa Clara County Public Health Order issued on March 16, 2020. The ordinance expressly exempts employees “who can work from home.”

The ordinance applies to employees who have “worked at least two (2) hours within the geographic boundaries of the City of San José.” The ordinance does not define when the employee must have worked two hours for the employer in San José.

How much sick leave must employers provide?

Covered employers must provide full-time employees with 80 hours of paid sick leave and part-time employees with 1 hour of paid sick leave for every hour the employee works based upon average hours worked over a 2-week period. The paid sick leave hours become available effective April 7, 2020. Employers that operate hospitals have until April 21, 2020, to provide the required temporary paid sick leave hours so long as the hospital provides its employees “with some combination of paid personal leave at least equivalent to the paid sick time required by this [o]rdinance.”

The ordinance does not apply to employers that already provide employees with at least 80 hours of paid personal leave. To the extent employers provide employees with personal leave of less than 80 hours, the ordinance requires those employers to provide supplemental temporary sick leave up to the 80-hour minimum. The ordinance does not expressly address whether employers must provide temporary sick leave benefits to employees to whom employers provide more than 80 hours of annual paid personal leave, but have less than 80 hours of that leave available as of April 7, 2020.

What is the pay rate at which employers must provide paid sick leave?

If the employee takes sick leave for his or her own medical condition, the employer must pay the employee sick leave hours at the employee’s regular rate of pay, up to $511 per day and $5,110 in the aggregate. If the employee takes sick leave to care for another person, the employer must pay two-thirds of the employee’s regular rate of pay, up to $200 per day and $2,000 in the aggregate.

For what reasons may an employee use paid sick leave?

Employees can use San José emergency paid sick leave for the following purposes:

• The employee is subject to a quarantine order due to COVID-19;
• The employee is caring for someone subject to a quarantine order due to COVID-19;
• The employee is advised by a healthcare provider to self-quarantine due to COVID-19;
• The employee is caring for someone who was advised by a healthcare provider to self-quarantine due to COVID-19;
• The employee is experiencing COVID-19 symptoms and is seeking medical diagnosis; or
• The employee is caring for a minor child because of a COVID-19-related school or daycare closure.

Employers may not require employees to find a replacement as a condition of using sick leave.

When does the ordinance become effective and when does it expire?

The ordinance takes effect immediately and expires on December 31, 2020.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available.