On April 7, 2020, the San Jose, California City Council adopted two essentially identical ordinances that require covered employers to provide emergency paid sick leave. The first item is an emergency ordinance that takes effect immediately, whereas the second item is a regular ordinance for which a second reading must occur. Based on comments made at the city council’s meeting, the city council's logic is, should a legal challenge to the urgency ordinance occur, there would be a solid legal foundation for the regular ordinance. Both ordinances will sunset on December 31, 2020. As with other local ordinances enacted in Los Angeles and San Francisco, employers will not receive any tax credits or monetary relief for providing this additional benefit.

Covered Employers & Employees

The ordinance applies to employers that are not required – in whole or in part – to provide paid sick leave benefits under the federal Families First Coronavirus Response Act (FFCRA). If an employer that is subject to San Jose's business license tax or maintains a facility in San Jose is not required to provide FFCRA emergency paid sick leave, the ordinance's intent is that it apply to such employer; however, if the employer already provides other paid time off it can use that amount for a partial or full offset of how much time it would have to provide under the San Jose ordinance. The language of the ordinance is complicated, so it is hoped the city will issue guidance to clarify which employers are covered.

The law covers employees who work at least two hours in San Jose. Significantly, employers must provide emergency paid sick leave only to employees who leave their home to perform essential work as defined by the Santa Clara County Public Health Officer's (PHO) shelter-in-place order. It is unclear, however, which order applies. For example, the ordinance references a March 16, 2020 order, but on March 31, 2020, the PHO issued an updated, more restrictive order.¹

Unlike the federal FFCRA, the San Jose ordinance provides a potential exception for construction industry employers with unionized workforces. Specifically, the ordinance looks to a construction industry exception under California's paid sick leave law, which provides:

An employee in the construction industry covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement either (A) was entered into before January 1, 2015, or (B) expressly waives the requirements of this article in clear and unambiguous terms. For purposes of this subparagraph, “employee in the construction industry” means an employee performing work associated with construction, including work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, repair work, and any other work as described by Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, and other similar or related occupations or trades.

It is unclear whether the city will strictly apply the state law test or instead apply a San Jose variation that uses the local instead of state minimum wage and/or uses a more recent date instead of January 1, 2015.

Covered Uses

Under the ordinance, employees can use emergency paid sick leave (EPSL) for the following reasons:

• An employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
• An employee is advised by a healthcare provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider;
• An employee experiences symptoms of COVID-19 and is seeking medical diagnosis; and/or
• An employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Employers need not allow employees to use EPSL if they are teleworking.

Amount & Value of Supplemental Paid Sick Leave

Similar to the FFCRA, the San Jose ordinance provides full-time employees with 80 hours of EPSL, whereas part-time employees receive an amount of hours equal to the number of hours they work on average over a two-week period.

Moreover, for part-time employees, to determine the amount they will use, employers must calculate the average number of daily hours the employee worked during the six months immediately preceding the law's effective date or the length of employment (if an employee has not worked six months). Like the FFCRA, the San Jose ordinance stipulates that employees do not carry over sick leave to the following year.

One of the biggest components of the ordinance is that it provides a full or partial exemption based on the amount of paid time off employees are already provided.  Specifically, the ordinance does not apply to employers that provide employees with some combination of paid leave that is at least equivalent to the amount of EPSL the law requires. During the meeting, the city council amended this provision slightly. The original ordinance involves employers that provide leave on the ordinance's effective date, but an amendment provides a two-week deferral period for employers that operate a hospital. For employers that provide leave, but in a lesser amount, they must make up the difference between what they provide and what the law requires, e.g., if an employer provides a total of 50 hours of time off to its full-time employees, the employees would have to receive an additional 30 hours of San Jose EPSL.

Like the FFCRA, the San Jose ordinance sets two different pay rate standards based on the reasons employees use EPSL. If they use EPSL for personal reasons, employers must pay employees their regular rate of pay. However, employees that use EPSL to care for another person receive two-thirds their regular rate of pay. Additionally, similar to the FFCRA, the maximum value for personal-use EPSL is $511 a day (aggregate of $5,110) and to care for another the maximum value is $200 a day (aggregate of $2,000).

When employment ends, employees are not entitled to receive the cash value of their unused EPSL.

Posting, Prohibitions, and Enforcement

The San Jose Office of Equality Assurance (OEA) will implement and enforce the ordinance in the same manner it enforces the San Jose Minimum Wage Ordinance. San Jose OEA can establish reasonable requirements to inform employees of their rights, including requiring employers to post notices.

Finally, the ordinance' sole prohibition is that employers cannot require an employee to find a replacement as a condition of using EPSL.

Next Steps

Covered employers have no time to develop policies, procedures, and practices to implement the law, thereby requiring employers to scramble. Accordingly, given the urgency ordinance requires urgent attention, employers should consult with counsel to determine how to comply with the ordinance.