State, County and City Orders Applicable to Large Employers
From Navigating COVID-19
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Employers of all sizes must be aware of city and county health and safety orders where they do business, and any extensions or amendments to them. Employers must comply with the federal Families First Coronavirus Response Act, state laws and the governor's executive order.
Some cities and counties are adopting ordinances that affect private employers with 500 or more employees. Following are examples of various regional orders recently approved.
STATE ORDER FOR FOOD SECTOR WORKERS
On April 16, 2020 Gov. Newsom signed Executive Order N-51-20 to provide two weeks of supplemental paid sick leave to food sector workers in businesses with 500 or more employees. Its purpose was to close the gap left by the Families First Coronavirus Response Act that mandates paid leave benefits for employers with 500 or fewer employees. The order was effective immediately, and will remain in effect for the duration of statewide stay-at-home orders.
A food sector worker is entitled to receive supplemental paid sick leave if he or she is unable to work because:
- He or she is subject to a federal, state or local quarantine or isolation order related to COVID-19.
- He or she was advised by a health-care provider to self-quarantine or self-isolate due to concerns about COVID-19.
- He or she is prohibited from working by the employer due to health concerns related to the potential of transmission of COVID-19.
To qualify for the supplemental paid sick leave under the executive order, the employee must work for or through a business with more than 500 employees nationwide and:
- be exempt from the stay-at-home order (N-33-20);
- perform work for the business outside the home; and
- satisfy one of these:
- work for one of the industries or occupations identified in certain Industrial and Welfare Commission wage orders –– canning freezing and preserving industry (IWC Wage Order 3-2001 section 2(B)); industries processing agricultural products after harvest (IWC Wage Order 8-2001 section 2(H)); facilities on a farm that prepare products for market (IWC Wage Order 13-2001 section 2(D)); or general agricultural occupations (IWC Wage Order 14-2001 section 2(D));
- work for a business that runs a food facility (grocery stores, fast food restaurants,);or
- deliver food from a food facility for or through a hiring entity.
The executive order is broad and intended to cover all food sector workers from farm to table. To qualify for the supplemental paid sick leave under the order the employee must perform work for or through a business with more than 500 employees nationwide and:
- have a regular rate of pay for the last pay period;
- be paid the state minimum wage (as of April 23, 2020, $13 per hour for employers with 26 or more employees and $12 per hour for employers with 25 or fewer employees); or
- be paid the local minimum wage (city minimum wages vary).
Full-time food sector workers who qualify are entitled to receive 80 hours of COVID-19 supplemental paid sick leave. Part-time workers receive the number of hours they normally are scheduled to work over two weeks.
Food sector workers are entitled to supplemental paid leave for the highest rate of:
- their regular rate of pay for the last pay period;
- the state minimum wage ($13 per hour for employers with 26 or more employees/ $12 per hour for employers with 25 or fewer employees);or
- the local minimum wage (varies).
Eligible workers are entitled to supplemental paid leave up to $511 per day, and $5,110 total.
A food sector employer is exempt from the executive order if, as of April 16, 2020, it provided paid benefits to compensate workers for the same purposes the order enumerates, and at the same level.
The order also requires employers to allow workers in any operation that stores, prepares, packages, serves, vends or otherwise provides food for human consumption at the retail level to wash their hands every 30 minutes and additionally as needed.
LOS ANGELES CITY
The COVID-19 supplemental paid sick leave emergency order applies to employers with 500 or more employees within the city of Los Angeles, or 2,000 or more employees within the U.S. The number is determined by how many people were employed from February 3, 2020 to March 4, 2020. The presumption is that an individual is an employee, which an employer must rebut to show that someone on the list qualifies as an independent contractor.
Exceptions to the sick leave order include health-care providers or first responders (peace officers, firefighters, paramedics, emergency medical technicians, public safety dispatchers or safety telecommunicators, emergency response communication employees, rescue service personnel).
Under the Los Angeles order, emergency sick leave must be granted:
- on oral or written request, and no doctor’s note or other documentation is required (uses are limited to taking time off);
- because a health-care provider requires or recommends an employee to isolate or self-quarantine;
- because an employee is 65 or older or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease or a weakened immune system;
- to care for a family member who is not sick but who public health officials or health-care providers require or recommend to isolate or self-quarantine;
- to provide care for a family member whose senior care provider or school or child care provider (for children younger than 18) closed in response to a public health or other public official’s recommendation.
Here are other key points and offsets of the order:
- Supplemental paid sick leave runs concurrently with paid sick leave under the FFCRA, and is an addition to California- and Los Angeles-mandated paid sick leave.
- City law requires that sick leave be given to employees, and that they may accrue and use as many as six days of paid leave annually. Under the emergency order, large employers must give an additional 10 days to employees who work at least 40 hours a week to enable them to care for a family member who is not sick but who public health officials or health-care providers require or recommend to isolate or self-quarantine.
- If an employer has provided paid leave since March 4 for reasons related to COVID-19, those hours will be offset against the 80-hour requirement. For example, if an employer provided a full-time employee five hours of paid leave for COVID-19 purposes after March 4, it would be obligated to provide only 75 hours under the emergency order.
CITY AND COUNTY OF SAN FRANCISCO
On April 7, 2020, the San Francisco Board of Supervisors adopted the Public Health Emergency Leave Ordinance (PHELO) that requires private employers with 500 or more employees worldwide to provide workers with paid public health emergency leave. It allows eligible employees to take as many as 80 hours of supplemental paid leave for reasons related to COVID-19.
The ordinance covers employees who have worked 56 or more hours in the year prior to enactment, including part-time and temporary employees. Employers of health-care workers or first responders may elect to exclude their workers.
Employees who may use supplemental paid sick leave:
- are subject to an individual or general federal, state or local quarantine or isolation order related to COVID-19;
- have been advised by a health-care provider to self-quarantine;
- are experiencing symptoms associated with COVID-19 and seeking a medical diagnosis;
- are caring for a family member who is subject to an order as described above, has been advised to self-quarantine or is experiencing symptoms associated with COVID-19;
- is caring for family members whose school or child care provider is closed or unavailable due to COVID-19;
- is experiencing any other substantially similar conditions specified by the local health officer.
Unlike the Families First Coronavirus Response Act, which is scheduled to remain in effect through Dec. 31, 2020, the PHELO remains in effect until the 61st day following enactment (unless San Francisco enacts a separate measure extending the time frame) or the COVID-19 crisis ends, whichever occurs first.
CITY OF SAN JOSE
San Jose enacted an ordinance similar to the other cities, affecting all employers not already covered by the FFCRA. The measure allows eligible employees to take as many as 80 hours of paid leave for reasons related to COVID-19. Benefits are available immediately, and expire on Dec. 31, 2020.
Eligible employees have worked at least two hours within the city’s geographic boundaries and must leave their residence to perform essential work. The ordinance does not say within what time period the work must have been performed.
Sick leave need not be provided to:
- employees who work from home;
- employees currently provided with some form of paid personal leave as long as it is at least equal to what the employee would have received under the ordinance (the employer must make up the difference).
Similar to the provisions of the FFCRA, the employee will receive full pay for absences related to his or her own illness (capped at $511 a day and $5,110 total) and up to two-thirds his or her regular rate of pay for caring for a family member (capped at $200 a day and $2,000 total).
Sick leave may be used if:
- The employee is subject to quarantine or isolation by federal, state or local order or is caring for someone who is quarantined or isolated.
- A health-care provider advised the employee to self-quarantine or is caring for someone who has been advised to quarantine.
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
- The employee is caring for a child younger than 18 because a school or child care facility is closed for reasons related to COVID-19.
Businesses should to check their local health and safety orders frequently to ensure that they are complying with all requirements.
An in-depth look at all of the local orders and ordinances is beyond the scope of this guide, but readers may link to many from the Appendix (below).