San Jose City COVID-19 Paid Sick Leave Ordinance

On April 07, 2020 San Jose City Council passed the COVID-19 Paid Sick Leave Ordinance. This ordinance went into effect immediately and will remain in force through December 31, 2020. The Ordinance is intended to cover employers who are not subject to the the federal Emergency Paid Sick Leave Act (EPSLA). Under this Ordinance employers with more than 500 employees as well as small businesses are now required to provide their employees with paid leave. The federal EPSLA allows businesses with fewer than 50 employees to obtain an exemption from the paid sick leave if the leave payments would jeopardize the viability of the business.

This Ordinance only covers "essential workers" so long as they have worked for at least two (2) hours within the geographic boundaries of the City of San Jose and are still required to go into work during the pandemic. The ordinance does not cover employees who work from home. For definition of essential, see Order of the Health Officer of the County of Santa Clara; Paragraph 10.

This Ordinance does not apply to the following employers:

1. Employers that operate a hospital so long as this employer provides its employees with some combination of paid personal leave at least equivalent to the paid sick time required by this Ordinance.

2. Employers that already provide their employees with some combination of paid personal leave at least equivalent to the paid sick time required by this Ordinance.

Sick Leave Hours: This Ordinance entitles full-time employee eighty (80) hours of paid sick leave and part-time employee sick leave hours equal to the number of hours an employee works on average over a two (2) - week period.

The Ordinance's Paid sick leave can be used by an employee in the following circumstances:

1. The Employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19,

2. The Employee is advised by a health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider,

3. The Employee experiences symptoms of COVID-19 and is seeking medical diagnosis, or

4. The Employee is caring for a minor child because a school or daycare is closed due to COVID-19.

For a part-time Employee: the allowed paid sick leave will be calculated using the average number of hours an employee worked per day during the six (6) months immediately preceding the effective date of this Ordinance. For employees that have worked less than six (6) months, then the employer will calculate the amount of sick leave used based on the average hours the employer expected at time of hire to have the employee work.

Per the Ordinance the employer will pay the employee for properly used sick leave at the employee’s regular rate of pay up to $511 a day not to exceed an aggregate of $5,110. The employer may pay an employee using sick time to care for another person at two-thirds of the Employee’s regular rate of pay up to $200 a day not to exceed an aggregate of $2,000.

While the federal Emergency Paid Sick Leave Act contains tax credits to help employers pay for the sick leave provided to employees, the San Jose Ordinance does not provide tax credit for the expansion of the Paid Sick Leave.

An employee is not entitled to carryover sick leave between years and are not entitled, under any circumstances, to be paid for unused sick leave. Unused sick leave will not be available at the expiration of this Ordinance.

An employer cannot require an employee to find a replacement as a condition of using sick leave. This means an employer asking an employee to find a co-worker to cover their shift before they could use paid sick leave is in violation fo the Sick Pay Ordinance.

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