On May 12, 2020, Oakland passed an emergency ordinance joining Los Angeles, San Francisco, and San Jose in requiring employers to provide paid sick leave to employees for COVID-19-related reasons. Codified as Code of Ordinances Chapter 5.94 and known as the “Protecting Workers and Communities During a Pandemic – COVID-19 Emergency Paid Sick Leave Ordinance” (Emergency Paid Sick Leave), Oakland’s new paid sick leave requirements aim to fill the gaps in the coverage provided by the federal Families First Coronavirus Relief Act (FFCRA).
Unlike the FFCRA, which only applies to employers with fewer than 500 employees, Oakland’s new paid sick leave requirements apply to all private employers, regardless of the number of employees, but subject to the exemptions noted below. Covered employers must pay the Emergency Paid Sick Leave payment by no later than the payday for the next regular payroll period after the employee takes Emergency Paid Sick Leave, and no more than 14 days after the employee takes Emergency Paid Sick Leave.
Full-time employees who worked within the City of Oakland, including the Port of Oakland, between February 3, 2020 and March 4, 2020, or at any point thereafter, are eligible for up to 80 hours of Emergency Paid Sick Leave.
Part-time employees are entitled to Emergency Paid Sick Leave in an amount equal to the average number of hours the employee worked over 14 days during the period of February 3, 2020 through March 4, 2020. The employer must calculate the amount of Emergency Paid Sick Leave a part-time employee is entitled to based on the highest number of hours worked within the City of Oakland during that one-month period.
The Emergency Paid Sick Leave amount paid to an employee, whether employed by a single employer or joint employers, shall not exceed $511 per day or $5,110 in the aggregate. However, employers may credit the total sick leave hours provided under the FFCRA against their obligations under Oakland’s Emergency Paid Sick Leave ordinance. Importantly, unlike other forms of paid sick leave, Oakland’s Emergency Paid Sick Leave must be paid out immediately upon separation.
Permissible uses of Emergency Paid Sick Leave
Like the FFCRA, Oakland’s Emergency Paid Sick Leave allows employees to use paid sick leave when unable to work (or telework) because the employee:
- Is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- Is caring for an individual who is subject to a federal, state, or local quarantine or isolation order, or has been advised by a health care provider to self quarantine;
- Is caring for a child whose school or place of care has closed, or whose child care provider is unavailable, due to COVID-19; or
- Is experiencing any other substantially similar condition specified by the federal Secretary of Health and Human Services in consultation with the Secretary of Labor and the Secretary of the Treasury.
Oakland’s Emergency Paid Sick Leave ordinance also allows employees to take leave for the following additional reasons:
- To care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19;
- To take time off work because the employee:
- Is at least 65 years old;
- Has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- Has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19; or
- Has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.
Employers are expressly prohibited from requiring a doctor’s note or other documentation in order for an employee to use Emergency Paid Sick Leave, unless the reason for taking leave is that the employee has a condition certified by a healthcare professional as putting the employee at higher risk of serious illness or death if exposed to COVID-19. Further, employers may not require that an employee use Emergency Paid Sick Leave in greater than 1-hour increments.
Oakland’s Emergency Paid Sick Leave ordinance exempts the following:
- Employers of health care providers or emergency responders;
- Employers that, after February 3, 2020, provide employees with the ability to accrue at least 160 hours of paid personal leave (which includes personal time off, sick leave, or vacation time). For this exemption to apply, each employee must have immediate access to at least 80 hours of leave after the effective date of this chapter and any employee whose personal leave balance fell below 80 hours prior to May 12, 2020 will be given additional leave to bring their balance up to 80 hours;
- Employers that provide employees with immediate access to paid personal leave in the amounts at least equivalent to the requirements of Oakland’s Emergency Paid Sick Leave Ordinance. For this exemption to apply, the paid personal leave must be in addition to unpaid leave the employer was otherwise required to provide under a collective bargaining agreement, employment contract, or public policy; and
- Employers with fewer than 50 employees between February 3, 2020 and March 4, 2020, but not including unregistered janitorial employers or franchisees associated with a franchisor or network of franchises where that franchisor or network of franchises employs more than 500 employees in the aggregate.