01 May

April 2020 California HR Legal Updates

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Supplemental Paid Sick Leave for Food Sector Employees

What happened?
On April 16, 2020, an executive order was signed which requires food service employers with 500 or more employees to provide at least two weeks of supplemental paid sick leave (SPSL).

What are the details?
This order covers all hiring entities that have 500 or more food sector workers nationwide. The order does state that the food sector workers are those individuals who are listed as exempt from the stay-at-home order. Employers must provide SPSL to any employee who is unable to work because they are (1) subject to a quarantine or isolation order related to COVID-19, (2) advised by healthcare provider to self-quarantine, or (3) prohibited from working at the employer due to health concerns related to COVID-19.

Calculating SPSL

  • Full-Time Employees: If a food sector worker works at least 40 hours/week, that individual should be provided 80 hours of SPSL.
  • Part-Time Employees: If a food sector worker works less than 40 hours/week, that individual should receive twice their weekly hourly equivalent of SPSL. For example, someone who works 20 hours/week should be allowed 40 hours of SPSL.
  • Varying Schedule Employees: If an employee does not work a normal schedule, they should receive 14 times the average number of hours worked each day for the preceding six months.

 SPSL must be made available immediately for anyone who requests it.

If employers currently provide a paid benefit at least equal to the amount listed above, the employer does not need to provide SPSL. However, employers may not require an employee to exhaust any other leave prior to using SPSL.

Payments

Payment of SPSL is due on the next regularly scheduled pay date.

The payment to staff shall be calculated with the highest of the following: (1) the regular rate of pay for the previous pay period, (2) the state minimum wage, or (3) the local minimum wage.

Hand Washing

All food facility employees must be permitted to wash their hands at least every 30 minutes.

What do employers need to do?
Post a copy of the required notice, which will be provided by the California Labor Commissioner and is available here.

All records of payments under SPSL must be kept for at least three years.

Resources
https://www.seyfarth.com/news-insights/new-paid-supplemental-sick-leave-for-california-food-sector-employers.html

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Supplemental Paid Sick Leave – City of Los Angeles

Applies to:
Businesses who operate within the City of Los Angeles.

Employers with either (1) 500 or more employees within the City of Los Angeles, or (2) 2,000 or more employees within the United States.

What happened?
The mayor superseded an ordinance established by the City Council to require supplemental paid sick leave to employees who perform work within the City of Los Angeles. Any staff who have been employed by the same employer from February 3, 2020 through March 4, 2020 is eligible for this leave.

What are the details?
Effective April 10, 2020, covered employers shall provide 80 hours of Supplemental Paid Sick Leave to full-time employees. Part-time employees (work less than 40 hours/week) shall receive the average number of hours worked for a two-week period between February 3, 2020 and March 4, 2020.

Time off must be provided for the following covered reasons:

  1. A “public health official or health provider requires or recommends the employee isolate or self-quarantine” due to COVID-19;
  2. If an employee takes time off and is at least 65 years old, or has an underlying health condition that puts them at risk;
  3. The employee needs to care for a family member who is not sick, but has been recommended or required to self-quarantine; and
  4. The employee needs to provide care for a family member whose senior care provider, school, or childcare provider is closed and no other care is available.

 Payments are capped at $511 per day and $5,110 in the aggregate.

Employees can submit a request either orally or in writing. The employer is prohibited from requiring a doctor’s note for use of supplemental paid sick leave.

Exemptions

The following industries are exempt from this Public Order:

  • Emergency and Health Services Personnel
  • Critical Parcel Delivery – If deemed as essential emergency service.
  • Generous Leave – Any employer that provides a minimum of 160 hours of paid leave annually.
  • New Business – All new businesses, except for construction or film producers, which opened within the city limits between April 4, 2019 and March 4, 2020 are exempt from this Public Order. In addition, if any business relocated to the City during this same time is also exempt.
  • Government – Government employees are exempt from this Public Order.
  • Closed Businesses – Any business or organization closed for at least 14 days due to the city official’s emergency order or has provided at least 14 days of paid leave.
  • Collective Bargaining – Current agreements are exempt only if they already include COVID-19 related sick leave provisions.

 In addition, if an employer has provided paid time off for one of the approved reasons listed above, they can reduce their liability accordingly.

This Order shall remain in effect until two calendar weeks (14 days) after the expiration of the COVID-19 local emergency period.

What do employers need to do?
Ensure workers are provided paid sick leave in compliance with the above and notified of their rights under this Order.

Supplemental Paid Sick Leave Order: https://www.lamayor.org/sites/g/files/wph446/f/page/file/SUPPLEMENTALPAIDSICKLEAVE.pdf

Articles:
https://www.californiaworkplacelawblog.com/2020/04/articles/disability-and-leave/paid-sick-leave/city-of-los-angeles-supplemental-covid-19-paid-sick-leave-will-proceed-but-as-superseded-by-the-mayors-public-order/?utm_source=Jackson+Lewis+-+California+Workplace+Law+Blog&utm_campaign=41d079931a-EMAIL_CAMPAIGN_2020_04_08_11_18&utm_medium=email&utm_term=0_d14f32d342-41d079931a-77869325

https://www.laboremploymentlawblog.com/2020/04/articles/coronavirus/los-angeles-mandates-supplemental-ffcra/?utm_medium=email&utm_campaign=Labor%20and%20Employment%20Law%20Blog%20copy&utm_content=Labor%20and%20Employment%20Law%20Blog%20copy+CID_b668f325a05d1132bf9ccb33f1a7c5db&utm_source=Create%20Send%20campaigns&utm_term=The%20City%20of%20Los%20Angeles%20Mandates%20Supplemental%20Paid%20Sick%20Leave%20Effective%20Immediately

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Supplemental Paid Sick Leave – San Jose

What happened?
Effective April 7, 2020, San Jose passed additional paid sick leave requirements related to COVID-19 for all business who are (1) subject to the Business License Tax required by Chapter 4.76 of the Municipal Code or maintains a facility within City boundaries and (2) employer is not required to provide paid sick leave benefits under the federal Emergency Paid Sick Leave Act.

What are the details?
Employee Eligibility

An employee must (1) have worked for the employer at least two hours within the City of San Jose and (2) leave their place of residence to perform “essential work” as outlined under the “shelter in place” order.

Employees may request leave if:

  1. Employee is subject to federal, state, or local quarantine or isolation order related to COVID-19
  2. Employee has been advised by a healthcare provider to self-quarantine
  3. Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis
  4. Caring for an individual who is subject to 1, 2, or 3
  5. Employee is caring for a family member whose school or place of care has been closed due to public health emergency
  6. Employee experiencing other substantially similar condition specified by Secretary of Health and Human Services

Payment of Leave

  • For reasons 1-3, employees are paid at their regular rate, up to $511 per day.
  • For reasons 4-6, employees are paid at two-thirds of their regular rate, up to $200 per day.

Number of Hours

  • Staff who work at least 40 hours/week are eligible for 80 hours of paid sick leave.
  • Part-time employees (anyone who works less than 40 hours/week) are eligible based on the average hours worked over a two-week period. This is calculated based on the hours worked between October 8, 2019 and April 7, 2020.
  • If a part-time employee worked less than six months, the average number of hours expected at date of hire will be used.
  • Other paid leave may be used to reduce the number of hours required under San Jose paid sick leave.

Recordkeeping

Employers should keep the following records:

  • Name of employee
  • Dates for requested leave
  • Reason for leave
  • Statement from employee of inability to work due to reason

What do employers need to do?
Comply with above regulations.

Post for all staff (share electronically) the required poster.

Resources
https://www.fisherphillips.com/resources-alerts-san-francisco-and-san-jose-provide-emergency

https://www.sanjoseca.gov/home/showdocument?id=56820

https://www.sanjoseca.gov/home/showdocument?id=56818

https://www.sanjoseca.gov/home/showdocument?id=56872

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Supplemental Paid Sick Leave – San Francisco

What happened?
On April 17, 2020, San Francisco passed the Public Health Emergency Leave Ordinance (SF PHELO), which provides eligible employees up to 80 hours of supplemental paid leave related to COVID-19. 

Applies to:
Private employers with 500 or more employees worldwide. This is determined by the average number of employees per pay period in calendar year 2019.

What are the details?
Any employee, including part-time and temporary employees, who perform work within the city limits of San Francisco. Employees may take time off if unable to work or telework due to caring for a family member whose school or place of care was closed or whose childcare provider is unavailable.

Employee may request leave orally or in writing.

Eligibility

Employee may take PHELO when:

  1. Employee is subject to federal, state, or local quarantine or isolation order related to COVID-19
  2. Employee has been advised by a healthcare provider to self-quarantine
  3. Employee is experiencing COVID-19 symptoms, and seeking a medical diagnosis
  4. Caring for a family member who is subject to 1, 2, or 3
  5. Employee is caring for a family member whose school or place of care has been closed due to public health emergency
  6. Employee experiencing other substantially similar condition specified by the local health officer or Secretary of Health and Human Services

Amount of Leave

  • Full-time employees (40 hour/week) are entitled to 80 hours of PHELO
  • Part-time employees (less than 40 hours/week) are entitled to time off equivalent to the average number of hours worked in the six months prior to February 25, 2020, including any paid leave taken. If hired after February 25, 2020, the leave will equate to the average number of hours worked over a two-week period from the hire date to the date of leave, including any paid leave taken.
  • The amount of leave may be reduced by all other COVID-19 related leave (ex. supplemental paid sick leave for food sector employees). If staff are required to have a total of 80 hours of PHELO and they have already been granted 40 hours COVID leave under a previous law, the company need only offer 40 hours of PHELO to eligible staff.
  • Employees may use PHELO for scheduled overtime hours (paid at the regular rate of pay), but cannot use time above the average number of hours worked over the previous six months, ending on February 25, 2020.

Calculating Pay

  • The employee will be compensated based on their regular rate of pay.
  • Tips are excluded.

Exceptions

  • Private sector employees at the San Francisco International Airport
  • Private sector employees who work at businesses located in the federal enclaves in San Francisco
  • Independent contractors
  • Collective bargaining agreements (CBA), if the CBA waives the requirements in clear and unambiguous terms
  • Healthcare workers and emergency responders may be exempt from most of these requirements. However, these employees may use this leave if they are unable to telework due to (1) healthcare provider advising self-quarantine or (2) the employee is experiencing symptoms and seeking a medical diagnosis and do not meet the CDC guidelines for return to work.

What do employers need to do?
Comply with the above rules.

Post the required notice once released.

Resources
https://www.fisherphillips.com/resources-alerts-san-francisco-and-san-jose-provide-emergency

https://www.littler.com/publication-press/publication/san-francisco-mayor-signs-public-health-emergency-leave-ordinance-and

https://sfgov.org/olse/sites/default/files/Public%20Health%20Emergency%20Leave%20-%20FINAL_0.pdf

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