42 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 2.14.3 Local Paid Sick Leave Ordinances Numerous municipalities were not content to follow a uniform state-wide standard for paid sick leave. They have opted instead to create their own special laws. These municipalities include San Francisco, Berkeley, Emeryville, Long Beach, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica. In 2021, West Hollywood enacted a mandatory paid time off (PTO) law, joining the ranks of several jurisdictions nationwide with such a mandate. San Francisco Paid Sick Leave. The San Francisco Paid Sick Leave Ordinance (PSLO), enacted in 2007, is the grandparent of paid sick leave mandates.147 Under the PSLO, workers accrue an hour of PSL for each 30 hours worked. Accrued PSL carries over year to year, although employers may apply a cap. Small employers (those with fewer than 10 workers) may cap accrued PSL at 40 hours, and larger employers may impose a cap of 72 hours. Employees may take leave not only for their own illness, but also to care for a child, parent, spouse, domestic partner, or other designated person. Employers need not pay out unused PSL upon termination of employment, unless the PSL has been combined with vacation as a form of personal time off. With California’s new “designated person” coverage, the list of covered family members now matches state law. While state law allows “front loading” of PSL once a year, the PSLO addresses the concept of front-loading PSL somewhat differently. Employers may grant an advance of PSL, which halts accruals until the employee has worked enough hours to earn the amount of the grant, then accruals resume or another advance is needed. San Francisco employees can earn more PSL than under state law and face no limit on the amount of annual use. The San Francisco Office of Labor Standards Enforcement (OLSE) enforces the PSLO.148 OLSE rules state that if an employee is jointly employed, and if at least one employer is covered by the PSLO, then each employer must comply with the PSLO.149 The OLSE notes, by way of example, that joint employment can occur when an employer uses a temporary staffing agency, leasing agency, or professional employer organization. The ordinance also applies to an employee who may live in San Francisco and work from home, or who makes stops in San Francisco to work (for example, to make pickups or deliveries), if the employee works in San Francisco at least 56 hours within a calendar year.150 The OLSE rules also provide guidance on calculating the rate of pay for sick leave and generally track statewide standards.151 Like state law, the OLSE rules require different rate-of-pay calculations for exempt and nonexempt employees. Although the PSLO does not define “regular rate of pay” or “exempt employee,” the OLSE defers to the DLSE on calculating the regular rate of pay, and to California law regarding whether an employee is exempt or nonexempt from overtime requirements. If an individual is exempt, and no other form of paid leave is provided, then the employee must be paid the designated salary without deducting for sick time taken. But the time taken can be applied against the employee’s sick leave balance. Rates of sick pay that have been deemed reasonable in a CBA remain so, even if the CBA does not explicitly waive or refer to the rates of pay section of the PSLO.152 The PSLO entitles employees to use accrued PSL as of the 90th day of employment. For rehired employees—if separated from the employer and rehired within one year—all previously accrued, unused PSL must be reinstated. For employees separated from an employer before the 90th day of employment and rehired within one year, the original period of employment counts toward the 90-day usage waiting period.153 For example, if an employee separates from an employer after working for 45 days, and then one month later is rehired, the employee must work another 45 days before the employer must permit the employee to use accrued PSL. San Francisco Public Health Emergency Leave. Going beyond the pre-existing generous PSLO, in 2020 San Francisco enacted the Public Health Emergency Leave Ordinance (PHELO).154 After repeatedly renewing the PHELO, San Francisco allowed it to expire in 2021, and then passed a permanent Public Health Emergency Leave (PHEL) ordinance that, as of October 1, 2022, requires employers with 100 or more employees worldwide, with limited exceptions, to provide up to 80 hours of paid PHEL to San Francisco employees.155 PHEL may be
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