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  • Update on Supplemental Paid Sick Leave Ordinances – CA

    We wanted to get this out quickly, and we hope you will read it quickly because breaking news becomes old news very fast these days…

    As of February 2nd, 2021, we have a good understanding of FFCRA-derived Supplemental Paid Sick Leave throughout California – what is in, what is out, and where it is currently in.  Come February 3rd, however, all bets are off.

    With the sunsetting of the federal Families First Coronavirus Response Act (FFCRA) on December 31st, individual states and localities were left scrambling for strategies to support employees and employers still dealing with significant workforce challenges.  On January 26th, the County of Los Angeles issued an urgency ordinance extending and enhancing the April 28th ordinance which had expired along with the FFCRA.

    The new ordinance can be found here: 153350.pdf (lacounty.gov).  Some of the key provisions addressed include:

    When does the ordinance become effective?

    The new ordinance became effective immediately and it is retroactive to January 1st, 2021, ensuring that there was no period of exclusion for covered employees.

    Which employers are covered?

    All employers in unincorporated Los Angeles County are covered by this ordinance.  Previously, the April ordinance covered employers with 500 or more employees, as a way to supplement the FFCA which covered employers with less than 500 employees.  No FFCRA means no employee-based threshold. Federal, state, and local government agencies are excluded.

    Which employees are covered?

    Similar to the April ordinance, this covers persons who perform any work within the unincorporated parts of the County. The few exclusions include Emergency Responders (firefighters, peace officers, paramedics, EMTs, public safety dispatchers, safety telecommunicators, rescue service personnel and others defined by the DOL as well as Health Care Providers.

    What exactly is “Unincorporated Los Angeles?”

    It can be very difficult to determine whether a particular address is in the City or the County of Los Angeles.  Actually, more than 65% percent of the County (2,653.5 square miles) is unincorporated.  For a map and an alphabetical listing of the areas, here is a link:  https://lacounty.gov/government/about-la-county/unincorporated-areas/.

    How much Supplemental Paid Sick Leave is included?

    As before, full-time employees (at least 40 hours per week) are eligible for a maximum of 80 hours of Supplemental Paid Sick Leave “for the entire period covered,” meaning effective the date of the original applicable ordinance.  An employee that exhausted their Supplemental Paid Sick Leave in 2020 would not be eligible for more under this ordinance.

    Part-time employees are eligible for a leave amount no greater than their two-week average pay over the period of January 1, 2020 through the effective date of the new ordinance, and it will be reduced by any Supplemental Paid Sick Leave used under the FFCRA.

    How is pay calculated?

    Same as before – based on the employee’s highest average two-week pay between January 1, 2020 and the effective date of the ordinance, with the maximum being $511 per day or $5,110 in total.

    What are the reasons for leave covered under this ordinance?

    Also, the same as before.  Remember, the employee must also not be able to telework.  The reasons for the leave are:

    1. A public health official or healthcare provider requires or recommends that the employee self-isolate or quarantine to prevent the spread of COVID-19.
    2. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (e.g., is at least 65-years-old or has a health condition such as “heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system”).
    3. The employee is caring for a family member 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 isolate or self-quarantine.
    4. The employee needs time off to care for a family member whose senior care provider, school, or child care provider has ceased operations in response to a public official’s recommendation.

    And, as before, the Supplemental Paid Sick Leave is available upon written request (including text or email) and the ordinance permits employers to require documentation for employees to use SPSL.

    When does the ordinance expire?

    Essentially, there is no definitive expiration date this time.  Citing the “extraordinary effects on employment resulting from the COVID-19 pandemic,” the ordinance does not expire until two calendar weeks after the expiration of the COVID-19 local emergency as ratified and declared by the Board of Supervisors.

    What other Supplemental Paid Sick Leave ordinances are currently in effect in California?

    • The City of Los Angeles– The city ordinance issued on April 7, 2020,  Public Order on Supplemental Paid Sick Leave Due to COVID-19, is still in effect. The city ordinance requires employers with either 500 or more employees in the city of Los Angeles or 2,000 or more employees to provide the supplemental leave.  It will remain so until two calendar weeks after the local state of emergency for COVID-19 is lifted.
    • The City of Long Beach – The city’s supplemental leave ordinance, which applies to employers with 500 or more employees nationally, has no expiration date.
    • The County of San Mateo – San Mateo has extended its paid-leave ordinance, which requires employers with 500 or more employees nationally to provide paid sick leave until June 30.
    • The City and County of Sacramento – Under the Sacramento County Worker Protection, Health and Safety Act of 2020, employers with 500 or more employees nationally must provide additional paid sick leave.  This has been extended through March 31st.
    • The City of San Jose– The City Council has approved and extension through June 30, 2021 of the COVID-19 Paid Sick Leave Ordinance, which had been adopted in April.
    • The City and County of San Francisco.  The Public Health Emergency Leave Ordinance is extended (currently) through Feb. 10th.  This ordinance requires employers with 500 or more employees worldwide to provide paid leave.
    • The City of Oakland – The City Council enacted an emergency ordinanceextending and modifying its existing emergency paid sick leave (EPSL) ordinance. The extension is effective retroactively from December 31, 2020 (the original sunset date) through the end of the city’s COVID-19 Emergency Declaration, unless the city council further extends the law. As an emergency ordinance, the amendment took effect immediately.
    • The County of Sonoma:- Also passed on January 26th, the Board of Supervisors enacted an ordinance that immediately extends its Supplemental Paid Sick Leave ordinance through June 30, 2021. Of particular importance, however, is that, unlike in L.A. County, the extension is not retroactive, meaning that employees taking leave between December 31, 2020, and the effective date of the amended ordinance, are not covered.

    So, who is paying for all of this?

    At least through March 31st, some of this will come courtesy of your friends at the Internal Revenue Service.  On January 29th, the IRS posted updated FAQs about recent legislation that extended and amended tax relief to certain small and mid-sized employers under the Families First Coronavirus Response Act (FFCRA). The FAQs are available at COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs.

    The updates to the FAQs cover how the COVID-related Tax Relief Act of 2020, enacted December 27, 2020, extends the availability of the tax credits created by the FFCRA to eligible employers for paid sick and family leave provided through March 31, 2021, as well as other amendments to the credits.

    The paid sick and family leave credits, which previously were available only until the end of 2020, have been extended for periods of leave taken through March 31, 2021.

    Eligible employers may claim the credits on their federal employment tax returns (e.g., Form 941, Employer’s Quarterly Federal Tax Return), but they can benefit more quickly from the credits by reducing their federal employment tax deposits. If there are insufficient federal employment taxes to cover the amount of the credits, an eligible employer may request an advance payment of the credits from the IRS by submitting a Form 7200, Advance Payment of Employer Credits Due to COVID-19.

    Full details can be found in the FAQs on the IRS website.

    Conclusions?

    As the first month of 2021 clearly demonstrates, we are far from done with updates and changes to federal, state and local leaves.  Expect frequent changes for at least the next few months.  Carefully check for updates, as they will probably continue to come quickly.  Stay tuned!