San Jose, California has adopted an emergency ordinance that will require employers to provide paid sick leave to employees if they are exempt from the leave requirements under the federal FFCRA. The ordinance is in effect from April 7 through Dec. 31, 2020.
Effective April 1, 2020, the FFCRA requires certain employers to provide paid leave to employees who are impacted by COVID-19. The law requires two types of paid leave: Emergency Paid Sick Leave and Public Health Emergency Leave (PHEL)/Expanded FMLA. The FFCRA only applies to employers with fewer than 500 employees.
Under the law, an employer of a healthcare provider or an emergency responder may elect to exclude the employee from the application of paid leave. Employers with fewer than 50 employees may also be exempt from the law's requirements to provide paid leave to an employee who is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19. The exemption would be available only if that requirement would jeopardize the viability of the business.
San Jose Emergency Ordinance:
The city's emergency ordinance is meant to address the gaps in the FFCRA's leave requirements.
The ordinance covers employers who are exempt, either in whole or in part, from the FFCRA's leave provisions.
To be eligible for the leave, the employee must work at least two hours within the geographic boundaries of the city for a covered employer.
Employers covered by the ordinance must provide paid sick leave to each employee who leaves their residence to perform "essential work." The ordinance defines essential work as work activities and services for which an employee may leave their residence to perform under the order issued by the Santa Clara County Public Health Officer on March 16, 2020.
Note: The ordinance doesn't require employers to provide paid sick leave to employees who can work from home.
Amount of Leave:
Under the ordinance, a full-time employee is entitled to 80 hours of paid sick leave. A part-time employee is entitled to sick leave hours equal to the number of hours they work on average over a two-week period.
An employee may use paid sick leave for any of the following purposes:
- The 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;
- The 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 healthcare provider;
- The employee experiences symptoms of COVID-19 and is seeking medical diagnosis; or
- The employee is caring for a minor child because a school or daycare is closed due to COVID-19.
Pay During Leave:
During the leave, the employee is entitled to be paid their regular rate of pay, up to $511 per day (and a total of $5,110). However, leave to care for an individual on quarantine/isolation/self-quarantine or to care for a child whose school or daycare is closed may be compensated at 2/3 of the employee's regular rate of pay, up to a maximum of $200 per day (and a total of $2,000).
The ordinance doesn't apply to any employer who:
- Provides its employees, on the effective date of the ordinance, with some combination of paid personal leave at least equivalent to the paid sick leave required by the ordinance; or
- Operates a hospital if such employer provides its employees, within two weeks of the effective date of the ordinance, with some combination of paid personal leave at least equivalent to the paid sick leave required by the ordinance.
San Jose employers who are fully or partially exempt from the FFCRA's leave requirements must ensure compliance with the city's ordinance. Please contact your dedicated service professional with any questions.
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