California COVID-19 Developments 

April 2, 2020

Changes to local law in California cities and municipalities continue at a rapid pace. In the past few days the city of Los Angeles, and six counties and two cities in the Bay Area have enacted new ordinances and orders in response to the COVID-19 pandemic. In addition, the U.S. Department of Labor has issued new rules in response to the pandemic. Some of the important changes are highlighted below.

Los Angeles

On March 27, 2020, the Los Angeles City Council voted to pass three new ordinances, all aimed at helping Angelinos during the coronavirus pandemic. These new ordinances only apply to the city of Los Angeles.

COVID-19 Supplemental Paid Sick Leave

The first new ordinance, titled “COVID-19 Supplemental Paid Sick Leave” (SPSL) was enacted in response to the federal government’s Families First Coronavirus Response Act (FFCRA) — applicable only to private employers with fewer than 500 employees and all public employers. The ordinance requires most Los Angeles employers of more than 500 employees nationally to offer 80 hours of supplemental paid sick leave to all employees in Los Angeles who must take leave for reasons related to COVID-19, including:

  1. Leave taken because a health care provider requires or recommends the employee self-quarantine or isolate to prevent the spread of COVID-19;
  2. Leave taken if the employee is at least 65 years old and has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. Leave taken because the employee must care for a family member who is not sick but who health care providers have required to or recommended to isolate or self-quarantine; or
  4. Leave taken because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation.

The leave runs concurrently with any leave required under FFCRA and is capped at $511 per day and $5,110 in the aggregate per employee. SPSL runs concurrently with paid leave already guaranteed under other California or Los Angeles local laws. To be eligible for SPSL, employees must have been employed with the same employer from February 3, 2020, through March 4, 2020, and must have performed some work within the city of Los Angeles. Only full-time employees (40+ hours) are eligible to receive the entire 80 hour benefit. Employees who work less than 40 hours per week are eligible for leave in an amount up to the employee’s average two week pay over the period from February 3, 2020, through March 4, 2020. Independent contractors are not covered by the SPSL.

The SPSL ordinance excludes employers of health care workers and emergency responders and also exempts employees covered by a collective bargaining agreement provided that the waiver in the agreement is set forth therein in clear, explicit, and unambiguous terms.

The SPSL ordinance will expire on December 31, 2020, unless the City Council votes to expand it beyond that date.

Grocery, Drug Retail and Food Delivery Worker Protection

The Grocery, Drug Retail, and Food Delivery Worker Protection Ordinance requires grocery store retailers and drug store retailers within the city of Los Angeles, and any food delivery platform (i.e. UberEats, DoorDash, Instacart, etc.) to approve any employee schedule change requests:

  1. to provide daycare for one’s own child,
  2. to care for a sick member of the employee’s immediate family or household, or
  3. if the employee feels ill, exhibits a symptom of COVID-19 (as identified by the Center for Disease Control), or suspects having been exposed to COVID-19.

The ordinance also requires Los Angeles employers to offer current employees any available additional working hours prior to seeking to hire new employees or prior to using temp agencies to fill immediate employment needs. However, the ordinance specifically states that employers need not offer employees additional hours if the additional work would push the employee’s total number of hours over the overtime threshold in accordance with Section 510 of the California Labor Code. The ordinance does not cover independent contractors, but the employer has the burden of proving that the worker is an independent contractor and not an employee, and there is a presumption of employee status.

Finally, the worker protection ordinance requires that food delivery platforms provide employees with a “no-contact” option for delivering food, groceries, or other covered goods. Employers must draft and provide written guidance to these employees on how to safely make a no-contact delivery.

The ordinance prohibits employers from retaliating against employees for opposing any practices pursuant to the ordinance and states that employees subjected to retaliation or discrimination will be entitled to job reinstatement, back pay, and other remedies. The ordinance is set to expire when either Governor Newsom or the mayor of Los Angeles lifts their state of emergency orders issued in response to the COVID-19 pandemic.

Grocery Shopping Priority for Elderly and Disabled Residents

The Grocery Shopping Priority for Elderly and Disabled Residents Ordinance requires retail food stores to restrict public access exclusively to elderly (60+) and disabled patrons during the first hour the store is open to the public or for one hour during the morning if the store is open 24 hours a day.

The ordinance applies only to retail food stores that are larger than 2,500 square feet. Retail food stores that are between 2,500 and 10,000 square feet need only provide priority shopping to elderly and disabled patrons three days per week. All retail food stores larger than 10,000 square feet must provide priority access to elderly and disabled patrons every day the store is open.

For purposes of the ordinance, retail food stores include:

  1. Any retail store including grocery and convenience stores primarily engaged in the sale of canned food, dry goods, fresh fruit and vegetables, and fresh meats and includes any area of the store, whether or not it is separately owned, where food is prepared and served, including a bakery, deli, coffee shop, or meat and seafood counter;
  2. Retail stores in which a portion of the sales is from a pharmacy (as defined by Bus. & Prof. Code section 4037);
  3. Membership-only warehouse clubs that engage in the sale of canned food, dry goods, fresh fruit and vegetables, or fresh meats, fish, or poultry.

Bay Area

Extension of “Shelter-In-Place” Orders Through May 3, 2020

The city and county of San Francisco, along with Alameda, Contra Costa, Marin, San Mateo, and Santa Clara counties, as well as the city of Berkeley enacted new orders on March 31, 2020, to fight the spread of the pandemic. The orders contain multiple provisions, and all contain virtually the same new directives, the most notable of which is that they “extend and tighten” the stay safe at home restrictions in the Bay Area for an additional 26 days, through May 3, 2020.

For employers, the new orders clarify the definition of essential businesses within the Bay Area. The order further clarifies that essential businesses must maximize the number of employees who work from home and they must scale down operations that are not essential, even if the business as a whole is deemed essential.

Most significantly for employers, the orders require that all essential businesses prepare and post, no later than 11:59 p.m. on April 2, 2020, a “Social Distancing Protocol” (protocol) in each facility located within each county or city that is frequented by employees or the public. The protocol must be “substantially similar” in form to the form attached to the orders as Appendix A. While the protocol must be in a similar form as Appendix A, the protocol must be specifically tailored to the particular business and must be posted near the entrance of the facility and easily visible by the public and employees.

The protocol must explain how the business is achieving the following, if applicable:

  1. Limiting the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another at all times, except as required to complete the essential business activity;
  2. Where lines may form at a facility, marking six-foot increments at a minimum, establishing where individuals should stand to maintain adequate social distancing;
  3. Providing hand sanitizer, soap and water, or effective disinfectant at or near the entrance of the facility and in other appropriate areas for use by the public and employees, and in locations where there is high frequency employee interaction with members of the public (e.g., cashiers);
  4. Providing for contactless payment systems or, if not feasible to do so, providing for disinfecting all payment portals, pens, and styluses after each use;
  5. Regularly disinfecting other high-touch surfaces;
  6. Posting a sign at the entrance of the facility informing all employees and customers that they should: avoid entering the facility if they have a cough or fever; maintain a minimum six-foot distance from one another; sneeze and cough into one’s elbow; and not shake hands or engage in any unnecessary physical contact; and
  7. Any additional social distancing measures being implemented (see the Centers for Disease Control and Prevention’s guidance here).

These new orders and ordinances in Los Angeles and the Bay Area impact thousands of employers. To ensure compliance with these orders, employers should consult with legal counsel prior to implementing new policies and procedures.

San Francisco Workers and Families First Program Paid Sick Leave Reimbursements

On March 16, 2020, San Francisco Mayor London Breed announced a program to provide paid sick leave to private sector employees working in San Francisco or on City-owned property who have been impacted by COVID-19. The new program includes $10 million in City funding to private employers who offer and pay employees for an additional five days of paid sick leave beyond their existing policies.

Under the program, all San Francisco employers are eligible to receive the City-sponsored funds. Twenty percent of the funds are reserved for small businesses with less than 50 employees. The City agreed to contribute to employers up to 40 hours at the minimum wage rate of $15.59 per hour, or $623 per employee. The employer is then tasked with paying the difference between the $15.59 per hour and the employee’s normal hourly rate. Employers who choose to participate in this program will be eligible for reimbursements of up to $311,176 (the equivalent to covering 499 full-time employees).

The program is only available if: 1) the employee has exhausted their currently available sick leave; 2) the employee has exhausted or is not eligible for federal or state supplemental leave (such as leave under the Families First Coronavirus Response Act, effective April 1, 2020); and 3) the employer agrees to extend sick leave beyond their existing policy benefits.

The sick leave is available to employees who are:

  • Sick;
  • Self-quarantined;
  • Caring for a sick family member;
  • Home because of a temporary work closure in response to a public official’s recommendation; or
  • Caring for a child who is home because of school or daycare closures in response to a public official’s recommendation.

The mayor announced that, if fully utilized, this program would support an additional 16,000 weeks of paid sick leave and would provide coverage for up to 25,000 San Francisco employees. The leave is available pursuant to San Francisco’s Paid Sick Leave Ordinance and the guidance issued by the San Francisco Office of Labor Standards Enforcement (OSLE). For step-by-step instructions of how to apply for the Paid Sick Leave program with the Workers and Families First Program, click here. For additional question, contact counsel or visit the San Francisco Office of Economic & Workforce Development FAQs here.

Continuous Workday

In an effort to promote flexibility while employers shift to teleworking environments, the U.S. Department of Labor (DOL) abandoned the longstanding “continuous workday” rule that typically required employers to pay employees for all hours between the first and last principal activities of the employee’s workday with the exception of any bona fide meal breaks. The DOL determined that during the COVID-19 pandemic, employers are not required to count all hours between the first and last principal activities as hours worked if the employee is teleworking for COVID-19 related reasons. Instead, the employee must only be paid for actual hours worked.

For example, an employer may allow an employee to work the following schedule: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays to allow the employee to also help a child with their schoolwork if the child’s school is closed. Under the continuous workday rule, the employee would arguably be owed 14 hours of wages. Under the DOL’s new rule, however, the employee need only be paid for the hours actual worked — 7.5 hours.

While this rule is beneficial for employers, California employers must keep in mind California Wage Orders require that employees be paid a split shift premium of one hour’s wages in these scenarios. In California, a split shift occurs when: 1) a work schedule includes an unpaid block of time longer than 60 minutes (that is not a meal period); 2) the block of time interrupts two work periods; and 3) the total daily wage does not exceed the minimum wage for all hours worked, plus one hour. When a split shift occurs, employers must pay employees a premium of one hour of pay.

There is no language from any California authorities intimating the split shift premium will be set aside during the pandemic. Employers should consult with counsel if offering employees modified schedules that might include a split shift.

 


Authors

Austin G. Dieter

Associate

adieter@cozen.com

(415) 593-9613

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