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California Local Paid Sick Leave Laws Related to COVID-19

The excessive number of individuals testing positive for COVID has employers scrambling to figure out what laws are in play and what they are to do.

While the State’s mandate on mandatory COVID19 Sick Pay ended, the State does still require employers to provide 24 hours of paid sick leave to employees in accordance with the State Guidelines.

In addition, certain cities have their own requirements which provide greater sick leave. In addition, Berkeley, Emeryville and Los Angeles still have COVID19 Sick Pay policies in play as of January 1, 2022.

As the outbreaks continue employers should constantly be checking with their city government websites and industry specific cites to determine what paid leave is required. Here is a brief summary of what Employers need to know with links to the respective details. Now more than ever employers need to check with trust advisors on leave policies to ensure compliance.

Berkeley

Berkeley’s regular Paid Sick Leave requires that all employees, including undocumented workers, earn one hour of paid sick leave for every 30 hours worked. Small business employers with fewer than 25 employees may cap an employee’s accrued paid sick leave at 48 hours and may cap the use of paid sick leave to 48 hours per year. Employers with 25 or more employees may cap an employee’s accrual of paid sick leave at 72 hours, but may not cap how much paid sick leave an employee uses in a calendar year.

The requirement may be waived in a bona fide collective bargaining agreement if the waiver is explicitly set forth in clear and unambiguous terms.

Accrued, but unused leave carries over from year to year — whether calendar or fiscal year — but cannot exceed the cap.

Covered employees can use the leave for physical or mental illness, injury, or a medical condition; obtaining professional diagnosis or treatment for a medical condition; other medical reasons, such as pregnancy or obtaining a physical examination. Leave can be used for the employee’s own need or to care for a family member (child, parent, legal guardian, ward, sibling, grandparent, grandchild, spouse, registered domestic partner) or a designated person if the employee does not have a spouse or registered domestic partner and designates a person for whom leave may be used.

Berkeley allows employers to take reasonable measures to verify or document that leave was used for a permitted purpose. Employers, however, cannot require employees to incur documentation or verification expenses exceeding $15.

Wage statements or required writings that must be provided when wages are paid must include the number of accrued paid sick-leave hours. Employers are not required to payout accrued but unused paid sick leave when employees are terminated, resign, retire, or otherwise separate from employment.

Employers must conspicuously post at any workplace or job site in Berkeley where any employee works the city-created notice informing employees of their paid-sick-leave rights. The notice must be posted in any language spoken by at least five percent of employees at the workplace or job site.

Employers must keep employee payroll records for a period of four years that identify hours worked, wages paid, and paid sick leave accrued.

Employers cannot retaliate or interfere with any person exercising protected rights under the ordinance.

Emeryville

Emeryville’s city ordinance requiring regular paid sick leave for most employees — full-time, part-time ,and temporary — working within the city limits requires workers accrue one hour paid sick leave for every 30 hours worked. Employees of small businesses — 55 or fewer employees — may accrue 48 hours of paid sick leave a year, and employees of large businesses — 56 or more employees — may accrue up to 72 hours a year.

Employees may use the paid sick leave to care for their own illness or condition, a family member’s illness or condition, or their designated individual. Additionally, the employee can use this leave to care for a service dog.

Los Angeles

The regular sick leave law for the city of Los Angeles allows employees to take up to 48 hours of paid sick time per year.

An employer may provide paid sick leave either by providing the entire 48 hours to an employee at the beginning of each year of employment, calendar year, or 12-month period or by providing the employee one hour of sick leave per every 30 hours worked.

An employer shall provide paid sick leave upon the oral or written request of an employee for themselves or a family member or for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Paid sick leave may be used for the purposes of preventive care or diagnosis, care, or treatment of an existing health condition, or for specified purposes of a victim of domestic violence, sexual assault, or stalking.

An employer may require documentation to substantiate the need for leave only after an employee has used more than three consecutive days of sick leave.

The exemptions to the California law do not apply. Thus, employers exempted from the California law will still need to comply with the Los Angeles Ordinances. This includes providers of publicly funded in-home supportive services, some employees covered by collective bargaining agreements, certain employees of air carriers, and retired annuitants working for governmental entities.

Retaliation by employers against employees for taking advantage of the law is prohibited.

Los Angeles also extended its Supplemental Paid Sick Leave Ordinance relating to COVID-19 until “two weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board.” This ordinance includes all employers and employees, including those in the food sector, who work in the unincorporated areas of the County.

Under the Supplemental Paid Sick Leave Ordinance, workers are entitled to a certain amount of pay during their leave if they are self-isolating, taking care of themselves as COVID patients, or caring for close family members who are isolating or COVID.

Oakland

Oakland’s regular paid sick leave law requires an employer provide paid sick leave upon the oral or written request of an employee for themselves or a family member or for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Paid sick leave may be used for the purposes of preventive care or diagnosis, care, or treatment of an existing health condition, or for specified purposes of a victim of domestic violence, sexual assault, or stalking.

An employer may require documentation to substantiate the need for leave only after an employee has used more than three consecutive days of sick leave.

Oakland has extended its COVID-19 emergency paid sick leave. Small businesses that employ fewer than 50 employees, except for unregistered janitorial employers of franchisees associated with a franchisor or network with over 500 employees, are exempt.

Full-time employees can take up to 80 hours sick leave to deal with a COVID related illness or care for someone with a COVID-related illness. For employees who work fewer than 40 hours per week their sick leave is an amount equal to the average number of hours the employee worked within the City of Oakland between Jan. 1, 2021, through Jan. 21, 2021.

San Diego

San Diego’s sick leave law requires employers provide each employee with earned sick leave.  Employees accrue no less than one hour of earned sick leave for every 30 hours worked within the geographic boundaries of the city. Employers may cap the total accrual of sick leave at 80 hours. Any unused accrued earned sick leave must be carried forward to the following benefit year.

Employers may limit an employee’s use of earned sick leave to 40 hours in a benefit year.

Employees may use earned sick leave for their own medical care or for the medical care of a family member.

Employers have to post a notice in the workplace informing employees of their rights to the earned sick leave, including information about the accrual and use of earned sick leave, the right to be free from retaliation for taking advantage of the leave.

Similar to other major cities and counties, San Diego decided to extend its COVID-19 related paid sick leave package for employers with over 25 employees on March 29th, 2021. Full-time workers are entitled to up to 80 hours of paid sick leave if dealing with a COVID-related illness.

San Francisco

Under the San Francisco Paid Sick Leave Ordinance, employers must provide paid sick leave to every employee who performs work either full or part-time in San Francisco. Paid sick time begins to accrue 90 days after the employee’s first day of work. Employees earn 1 hour of paid sick leave for every 30 hours of work. For employers with less than 10 employees, the required paid sick leave is capped at 40 hours. For employers with 10 or more employees, paid sick leave is capped at 72 hours.

Leave time earned does not expire and carries over to the next year. However, an employee can use as many sick leave hours in one year as they wish, so long as they have not reached the total cap.

Sick leave can be taken for illness, injury or to seek medical treatment or diagnosis for the employee, a family member or other designated person.

Santa Monica

Santa Monica’s paid sick leave law went into effect on Jan. 1, 2017. The beachfront community was quick to point out that its law was more generous than existing state law requirements on sick leave. Employees, which includes full-time, part-time, and temporary workers, accrue 1 hour for every 30 hours worked. Employees can earn up 40 hours for small businesses (25 or fewer employees), and 40 hours for larger businesses (those with 26 or more employees).

Employees can use the leave to recover from an illness, for treatment involving an illness and for preventive care for the employee or a family member.

Employers can front load sick leave at the start of the fiscal, calendar or anniversary year. Employees can carry over unused accrued leave up to 32 hours for small businesses and 40 hours for large businesses.

The ordinance prohibits retaliation against employees who take advantage of the leave.

For questions about sick leave laws or other matters, reach out to our experienced Labor & Employment Department at 408.286.5800 or e-mail christine.long@berliner.com.