Employers Have Increased Sick Pay Responsibility

Wed, 05/26/21

Santa Rosa Employers Now Have Increased Sick Pay Responsibility

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Effective immediately, the Santa Rosa City Council voted to increase sick pay and include more employers under the recently passed Families First Coronavirus Response Act (“FFCRA”).

The FFCRA is a federal law that provides employees with two key benefits: (1) up to 80 hours of Emergency Sick Leave for employees experiencing COVID-19 related illness, taking care of family members with the illness, or who lack childcare due to school and daycare closures; and (2) up to 10 weeks of Expanded FMLA leave for childcare due to school and daycare closures. The FFCRA requires employers to pay the full wages of employees who need time off for their own or a family member’s illness up to a maximum of $511/day; and 2/3 of wages up to $200/day for absences due to lack of childcare. Employers who pay these benefits are then entitled to a dollar-for-dollar tax credit reduction on their payroll taxes. 

The FFCRA specifically exempted employers with 500 or more employees. Employers of healthcare providers and emergency responders could also elect to not provide the leave. Further, the FFCRA provided an exemption for employers of less than 50 employees who could not offer time off for childcare due to severe economic hardship.

Santa Rosa City Council voted 7-0 in favor of expanding the FFCRA in three important respects:

1. The FFCRA and Ordinance rules will apply to employers with 500 or more employees nationally (except government employers);
2. Employers of healthcare workers and emergency responders are not permitted to opt out of providing the sick leave benefit; and
3. Employees who take Emergency Sick leave to care for their children because of a school or daycare closure are entitled to be paid their daily rate up to a maximum of $511 per day for up to two weeks (up from $200 per day under the FFCRA).

What the new Ordinance does NOT do:

1. Does not require employers to give more than the baseline amount: An employer that provides paid sick leave less than the two weeks paid sick time required by the Ordinance is required to comply to the extent of such deficiency. Otherwise, if the employer’s current policy provides at least two weeks of paid sick leave, no further paid time off is required.
2. Does not require employers to provide the leave if they would qualify for the small employer exception under the FFCRA: The Ordinance adopts the exception from the FFCRA for employers of less than 50 employees, if providing the paid leave to care for their child due to a school or daycare closure would “jeopardize the viability of the business as a going concern.” 
3. Does not apply to the 10 weeks of expanded FMLA leave also created by the FFCRA: The Ordinance does not expand pay or other rights for parents under the expanded FMLA portion of the FFCRA, which provides an additional 10 weeks of paid leave to care for children whose school or daycare is closed.
4. Is not a permanent requirement: The Ordinance sunsets on December 31, 2020, along with the FFCRA.

Below is a full policy encapsulating the FFCRA and the Santa Rosa Ordinance for Sick Time:

Emergency Paid Sick Leave Policy

Eligibility

All full- and part-time employees unable to work (or telework) due to one of the following reasons for leave:

1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to either number 1 or 2 above.
5. The employee is caring for his or her child if the school or place of care of the child has been closed, or the childcare provider of such child is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.

“Child” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is:

• under 18 years of age; or
• 18 years of age or older and incapable of self-care because of a mental or physical disability.

Amount of Paid Sick Leave

All eligible full-time employees will have up to 80 hours of paid sick leave available to use for the qualifying reasons above. Eligible part-time employees are entitled to the number of hours worked, on average, over a two-week period.

For employees with varying hours, one of two methods for computing the number of hours paid will be used:

• The average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type; or,
• If the employee has worked less than six months, the expected number of hours to be scheduled per day at the time of hire.

Rate of Pay

Paid emergency sick leave will be paid at the employee’s regular rate of pay, or minimum wage, whichever is greater, up to a maximum of $511 per day. For a full-time employee, the maximum benefit is $5,110 for ten days of leave.

Interaction with Other Paid Leave

The employee may use emergency paid sick leave under this policy before using any other accrued paid time off for the qualifying reasons stated above.

Employees on expanded FMLA leave under this policy may use emergency paid sick leave during the first 10 days of normally unpaid FMLA leave.

Procedure for Requesting Emergency Paid Sick Leave

Employees must notify their manager or the HR manager of the need and specific reason for leave under this policy, and a FFCRA Leave Request Form completed. Once emergency paid sick leave has begun, the employee and his or her manager must determine reasonable procedures for the employee to report periodically on the employee’s status and intent to continue to receive paid sick time.

Carryover

Paid emergency sick leave under this policy will not be provided beyond December 31, 2020. Any unused paid sick leave will not carry over to the next year or be paid out to employees.

Job Protections

No employee who appropriately utilizes emergency paid sick leave under this policy will be discharged, disciplined or discriminated against for work time missed due to this leave.

If you have any legal questions or concerns, please call Dawn Ross or Samantha Pungprakearti at Carle, Mackie, Power & Ross LLP at (707) 526-4200.