46 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com Oakland. Oakland’s PSL ordinance, passed in 2014, covers any employee who in any workweek performs at least two hours of work in the city. The definition of “employer” includes indirect employers, such as businesses who hire through staffing agencies. The substantive provisions are similar to San Francisco’s ordinance as it existed at the time. The Oakland ordinance186 provides that employees earn one hour of PSL for every 30 hours worked. Employers may cap the annual amount accrued at 72 hours, though small businesses (fewer than 10 employees) may place a cap at 40 hours. Sick leave can be used for care of the employee, a wide array of covered family members, and designated persons. As in San Francisco, PSL in Oakland begins to accrue on hire and can be used beginning on the 90th day of employment. Front-loading 72 hours (40 hours for small businesses) is not permissible under the Oakland ordinance.187 Unlike California’s state PSL law, Oakland’s PSL is paid at the employee’s regular hourly or salaried rate in effect at the time of PSL, although the higher state PSL pay rate applies when the state PSL law applies.188 In response to the pandemic, Oakland issued guidance that its PSL ordinance applies to Covid-related family care as well as the employee’s own needs.189 Oakland went further, on May 12, 2020, to pad its local general sick leave mandate with up to 80 hours (prorated for employees working fewer than 40 hours per week) of additional leave for Covid-related reasons, including additional reasons not covered under the FFCRA. When using Covid-19 leave, employees must be paid full pay, not less than the city minimum wage, subject to a $511 daily cap and a $5,110 aggregate cap, regardless of the covered reasons for use.190 The Oakland Covid-19 leave ordinance also requires that employees laid off on or after May 12, 2020 be paid out their general sick leave balances upon termination, despite there being no such requirement under Oakland’s general sick leave ordinance. Oakland’s Covid-related supplemental paid sick ordinance has been extended until the declaration of the Covid-19 emergency ends. On January 19, 2021, the Oakland City Council unanimously passed an emergency Ordinance to extend the Oakland Covid-19 Emergency PSL mandate with retroactive effect to December 31, 2020.191 The Emergency Ordinance, is now scheduled to expire after the expiration of Oakland’s Declaration of Covid-19 Emergency, which is still in effect. San Diego (City). The City of San Diego’s PSL became effective in 2016.192 Unlike other ordinances, San Diego’s specifically excludes not only employees who are exempt from state minimum wage laws, but also employees paid a subminimum wage under a specific license, employees of publicly subsidized summer or short-term youth employment programs, and student employees, camp counselors, and program counselors of organized camps. The San Diego ordinance mostly follows state law as to covered family members, though San Diego makes a point of covering half, adopted, and step-siblings. The ordinance also follows state law on reasons for using PSL, except that San Diego adds two additional triggering events: (1) when the workplace is closed due to a public health emergency, and (2) when the employee is providing care or assistance to a child whose school or child care provider is closed by local order due to a public health emergency. The San Diego ordinance appears to differ from state law on the rate of pay for PSL. Under the ordinance, nonexempt employees are paid “at the same regular rate of pay for the workweek in which the employee uses earned” PSL. San Diego’s FAQs state: “Employees accrue leave by the hour, not by a specific wage rate. When used, these hours must be paid at the hourly rate the employee earns at the time the employee uses the earned sick leave.”193 San Diego’s PSL ordinance allows employers (1) to cap an employee’s total accrual of PSL and carryover at 80 hours, (2) to front-load no fewer than 40 hours of PSL at the beginning of each “benefit year” (a regular and consecutive 12-month period, as determined by the employer), and (3) to limit an employee’s use of PSL to 40 hours per “benefit year.” San Diego issued guidance on how its PSL law could be used for Covidrelated purposes, including quarantining or caring for family members who must quarantine, inability to work due to being part of a vulnerable population (e.g., age 65+; serious chronic medical condition), and closures of workplaces, schools, and childcare.194
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