On July 7, 2020, the San Mateo County Board of Supervisors adopted an emergency ordinance to establish supplemental paid sick leave for COVID-19 related reasons. The ordinance took effect on July 8, 2020, and will remain in effect through December 31, 2020. It applies only to unincorporated areas of San Mateo County, California.

Covered Employers/Employees

The ordinance applies to employers with 500 or more employees within the United States, including the District of Columbia, or any U.S. territory or possession, and is designed to cover employers to which the Families First Coronavirus Response Act (FFCRA) does not apply. Covered employees are individuals who have been “required by their [e]mployer to perform any work within the geographic boundaries of unincorporated San Mateo County since January 1, 2020.” However, per Governor Gavin Newsom’s Executive Order N-51-20, food sector workers are excluded from the definition of “employee.”

Sick Leave Requirements

Employers must provide full-time employees, normally scheduled to work 40 hours or more per week, 80 hours of supplemental paid sick leave (SPSL). Part-time employees, normally scheduled to work fewer than 40 hours per week, are entitled to SPSL “in an amount no greater than the [e]mployee’s average number of work hours in a two-week period, calculated over the period of January 1, 2020 through July 7, 2020.”

Under the ordinance, “an [e]mployer may not require an [e]mployee to use any other paid or unpaid leave, paid time off, or vacation time … before the [e]mployee uses [SPSL], or in lieu of [SPSL].” However, employers may reduce the amount of SPSL they must provide under the ordinance by the amount of additional COVID-19-related paid leave they allocated to employees from March 17, 2020, to June 30, 2020, or “pursuant to the laws of another jurisdiction.”

Amount of Pay

According to the ordinance, employees using SPSL must be paid at their regular rate of pay not to exceed $511 per day and $5,110 in aggregate, for any of the qualifying reasons. On the other hand, the FFCRA sets the maximum at $511 per day and $5,110 in the aggregate only when the qualifying reason relates to the employee, and $200 per day and $2,000 in the aggregate for other FFCRA-qualifying reasons.

Qualifying SPSL Reasons

An employer must provide SPSL if the employee submits a written request (e.g., through email or text) indicating that he or she cannot physically report to work or telework because:

  • the employee was “advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19”;
  • the employee “is experiencing COVID-19 symptoms and is seeking a medical diagnosis”;
  • the employee “needs to care for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a health care provider to self-quarantine related to COVID-19 or is experiencing COVID[-]19 symptoms and is seeking a medical diagnosis”;
  • the employee “needs to provide care for an [i]ndividual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.”

The ordinance also states that an employer “may request information supporting an [e]mployee’s request for SPSL, as provided in the FFCRA or in the applicable regulations or guidance issued by the [U.S.] Department of Labor.”

No Waiver of Rights to SPSL

A prospective waiver by an employee of any of the provisions of the ordinance is “deemed contrary to public policy and shall be void and unenforceable.”

Prohibition Against Retaliatory Actions

Employers may not “discharge, reduce in compensation or otherwise discriminate against any [e]mployee for opposing any practice proscribed by this [o]rdinance, for requesting to use or actually using [SPSL] under this [o]rdinance, for participating in proceedings related to this [o]rdinance, for seeking to enforce his or her rights under this [o]rdinance by any lawful means, or for otherwise asserting rights under this [o]rdinance.”

Enforcement

An employee may file a legal action in Superior Court of the State of California against his or her employer for alleged violations. Remedies include reinstatement to the position from which the employee was discharged; any back pay and SPSL unlawfully withheld by the employer; other legal or equitable relief that the court may deem appropriate; and reasonable attorneys’ fees and costs.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.