Soon after San Jose passed its supplemental paid sick leave ordinance to respond to the COVID-19 crisis, it issued further guidance regarding the leave. The Director of the Office of Equality Assurance, the office charged with enforcement of the emergency ordinance, has also issued an opinion letter to provide additional information.

The opinion letter addresses the question of whether an employer that already provides the amount of sick leave hours required by the ordinance, must also provide additional leave for an employee who has exhausted some or all of that leave on the ordinance effective date. The opinion letter states, “[e]mployers covered by the ordinance are required to provide, on the ordinance effective date, at least the number of paid sick leave hours required by Section 9 [of the ordinance], regardless of paid sick leave accrued or used by the employee prior to the effective date.”

Essentially, the employer must provide the amount of sick leave hours needed to bring the employee up to the total hours required by Section 9 of the ordinance (80 hours for full-time employees) by April 7, 2020. An employer that provides some combination of paid personal leave less than the paid sick time required by the ordinance must provide the differential amount to the extent of such deficiency.

For example, assume an employer provides a full-time employee with eighty (80) hours of paid sick leave on January 1, 2020, and the employee had used twenty-four (24) hours of paid sick leave by the ordinance effective date. To comply with the ordinance, the employer must provide the employee with twenty-four (24) hours of additional paid sick leave on the ordinance effective date. The additional twenty-four (24) hours is subject to the limitation that it can be used only for the COVID-19 related reasons stated in the ordinance.

Employers subject to the ordinance are also required to provide notice to employees of their rights under the ordinance by posting or providing a copy of the notice issued by the city.

The COVID-19 Paid Sick Leave webpage indicates that the Office of Equality Assurance will continue to issue opinion letters in response to common questions regarding the ordinance.