©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 53 142 https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave (visited Mar. 20, 2023). 143 Consolidated Appropriations Act of 2021, Pub. Dec. 27, 2020. 144 https://www.dir.ca.gov/dlse/FAQ-for-PSL.html (visited Mar. 20, 2023). 145 AB 1867 created Lab. Code § 248 for food sector workers and Lab. Code § 248.1 for other workers. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1867 (visited Mar 20, 2023). 146 Lab. Code §§ 248(b)(2)(A)(i) & (ii) and 248.1(b)(2)(A)(i) & (ii) (80 hours for employees considered full-time and scheduled to work, on average, at least 40 hours per week for the hiring entity in the two weeks preceding the date of using the paid sick leave). The proration formula for part-time and variable hours was convoluted. See Lab. Code §§ 248 (b)(2) (B) (i)-(ii) and 248.1(b)(2)(C)(i)-(iii). The rate of pay was convoluted as well, requiring paying the highest of “(i) The covered worker’s regular rate of pay for the covered worker’s last pay period, including pursuant to any collective bargaining agreement that applies; (ii) The state minimum wage; or (iii) The local minimum wage to which the covered worker is entitled.” See Lab Code §§ 248(b)(3)(i)-(iii) and 248.1(b)(3)(i)-(iii). Section 248.1((b)(3)(B) provided that the supplemental paid sick leave would be at the same “regular rate” as if the employee was scheduled to work, thereby including extra pay like “hero pay.” But the supplemental sick pay was capped at the FFCRA levels of $511.00 per day and $5,110.00 in the aggregate. See Lab. Code §§ 248.1(b)(3)(B) and 248.1(b)(3)(C). 147 Lab. Code §§ 248(b)(1)(A)-(C), and 248.1(b)(1)(A)-(C). 148 Lab. Code § 248(b)(2)(C)(“The total number of hours of COVID-19 food sector supplemental paid sick leave to which a food sector worker is entitled pursuant to subparagraph (A) or (B) shall be in addition to any paid sick leave that may be available to the food sector worker under Section 246, but shall not be in addition to the total number of hours of supplemental paid sick leave available to the worker under Executive Order N-51-20”) and § 248.1(b)(2)(D) (“The total number of hours of COVID-19 supplemental paid sick leave to which a covered worker is entitled … shall be in addition to any paid sick leave that may be available to the covered worker under Section 246.”). 149 See Lab. Code §§ 248 (c) and 248.1(c). Employers were not permitted to require use of other sick leave or vacation before allowing employees to use their supplemental sick leave under Lab. Code §§ 248(b)(4) and 248.1(b)(4). 150 https://file.lacounty.gov/SDSInter/bos/supdocs/153350.pdf (visited Mar. 20, 2023). 151 https://oakland.legistar.com/LegislationDetail.aspx?ID=6018629&GUID=8839D312-1383-4221-AECA-DD2B130FBBF4 (visited April 11, 2023). 152 CCR, Title 8, § 3205(c)(9)(D). 153 Compare id. and CCR, Title 7, § 3205. 154 San Francisco Administrative Code, Ch. 12W, https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_admin/0-0-0-8843 (visited Mar. 6, 2023). 155 Rules Implementing Paid Sick Leave Ordinance (June 7, 2018), City and County of San Francisco Office of Labor Standards Enforcement, https://sfgov.org/olse/sites/default/files/Document/PSLO%20Final%20Rules%2005%2007%202018%20to%20post.pdf (visited March 6, 2023). 156 Id. Rule 10. 157 Id. Rule 6. 158 Id. Rule 5. 159 Id. 5.4. The pay rate would still need to be at least as high as the rates in Lab. Code §246(l)(1)-(3), unless the collective bargaining agreement exemption applies under Lab. Code § 245.5(2). 160 Id. Rule 4. 161 https://sfmayor.org/article/mayor-breed-announces-plan-provide-paid-sick-leave-workers-impacted-coronavirus (visited Mar. 6, 2023). All City of San Francisco businesses were eligible, with up to 20% of funds reserved for small businesses with 50 or fewer employees. The City paid up to one week (40 hours) at $15.59 per hour (minimum wage) per employee, or $623 per employee. The employer paid the difference between the minimum wage and employees’ full sick time rate. This program was available only if the employee had exhausted currently available sick leave, exhausted or was not eligible for federal or state supplemental sick leave, and the employer agreed to extend sick leave beyond current benefits. As of November 2020, the City stopped taking employer applications for reimbursement. https://sf.gov/step-by-step/get-reimbursed-paying-your-sf-staff-extra-sick-time (visited Mar. 6, 2023). 162 https://sfgov.legistar.com/View.ashx?M=F&ID=8897590&GUID=ACE5835E-CDB4-425C-AC2D-5B1C0EECEBB2 (reenacting through expiration date of February 11, 2021) (visited Mar. 6, 2023). 163 https://sfgov.org/olse/public-health-emergency-leave-ordinance (visited Mar. 6, 2023). 164 Proposition G, effective October 1, 2022. http://files.amlegal.com/pdffiles/sanfran/2022-06-07-PropG.pdf (visited Mar. 6, 2023). 165 https://sf.gov/news/san-francisco-end-covid-19-public-health-emergency-declaration-and-health-orders (visited Mar. 6, 2023). 166 Proposition G, effective October 1, 2022. http://files.amlegal.com/pdffiles/sanfran/2022-06-07-PropG.pdf (visited Mar. 6, 2023). 167 Berkeley Municipal Code §§ 13.100.010 through 13.100.120, https://berkeley.municipal.codes/BMC/13.100 (visited Mar. 6, 2023). See also Frequently Asked Questions (FAQs) at https://solomonpage.com/wp-content/uploads/Berkeley-Paid-Sick-Leave-Ordinance.pdf (visited Mar. 6, 2023). 168 Emeryville Municipal Code Chap. 37, § 5-37.03, http://www.codepublishing.com/CA/Emeryville/#!/emeryville05/Emeryville0537.html#5-37 (visited Mar. 6, 2023). See also Frequently Asked Questions (FAQs) at https://www.ci.emeryville.ca.us/DocumentCenter/View/9092 (visited Mar. 6, 2023). 169 Long Beach Municipal Code 5.48.020, https://library.municode.com/ca/long_beach/codes/municipal_code?searchRequest=%7B%22searchText%22:%22hotel%20sick%22,%22
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