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COVID-19 and the Local Ordinance Landscape: Looking Ahead to 2021

September 10, 2020 | From HRCalifornia Extra

by Bianca N. Saad, J.D.; Employment Law Counsel/Subject Matter Expert, CalChamber

Since the COVID-19 pandemic began, we’ve seen numerous changes to all aspects of life — and employment law is no different, with things like federal and state emergency paid sick leave (EPSL), and a patchwork of state guidance around how businesses can safely reopen and maintain a safe and healthy workplace for employees.

As if all that wasn’t enough, several cities and counties throughout California have passed their own laws to address various COVID-19-related circumstances, largely aimed at protecting workers and, in turn, slowing the virus’ spread.

Following is a recap of various COVID-19 ordinances that have passed this year.

FFCRA Recap

The federal Families First Coronavirus Response Act (FFCRA) took effect on April 1, 2020, and has two separate components:

• Up to 80 hours EPSL, which is provided to all employees based on five potential qualifying reasons related to COVID-19 and paid out at either 100 percent or two-thirds of the employee’s regular rate of pay, depending on whether the employee is using the leave for themselves or to care for someone else; and
• Up to 12 weeks of Expanded Family and Medical Leave (E-FMLA) to care for a child whose school or place of care is closed or childcare provider is unavailable due to COVID-19-related reasons, 10 weeks of which are paid at two-thirds the employee’s regular rate of pay.

Because the FFCRA only covers employers with 499 or fewer employees nationally, ultimately excluding larger employers with 500 or more employees nationally, several localities passed their own local emergency paid sick leave ordinances (also referred to as supplemental sick leave ordinances) in an attempt to fill the gap left by the EPSL provisions, and to provide additional sick leave to employees working for larger organizations.

Emergency Paid Sick Leave Ordinances

Currently, all ordinances will remain in effect through December 31, 2020, (the same sunset date as the FFCRA) and some include the option to extend and/or automatically align with any extension made to the FFCRA, though none is foreseen at this time.

The city of Los Angeles started the trend in early April, followed by San Jose, San Francisco and unincorporated Los Angeles County in the same month. In May, we saw similar ordinances take effect in Oakland and Long Beach.

Most recently, Santa Rosa, unincorporated San Mateo County and unincorporated Sonoma County have all joined the list — as did the city of Sacramento, whose ordinance goes a bit further. Not only does it provide supplemental sick leave to employees, but it also requires all Sacramento employers to implement and follow certain physical distancing, mitigation, and cleaning protocols and practices — and employees have the right to refuse to work if employers fail to meet health and safety standards.

The most important thing to keep in mind, especially for employers with employees in any of the 10 aforementioned localities, is that no two ordinances are the same. While it’s true that the ordinances generally align with the FFCRA’s EPSL provisions, many of them also provide greater benefits and protections than what’s provided federally. For example, many ordinances have added on to the list of qualifying reasons for use of the sick leave; and some localities, such as the city of Santa Rosa and unincorporated Sonoma County, have done away with an exemption for employers of health care workers who may otherwise be exempt under federal law (the definition of “health care provider” for FFCRA exemption purposes is currently unclear). Employers subject to any of these EPSL ordinances should review them carefully and work with legal counsel to ensure compliance.