The City of San Jose, California has enacted a law expanding the reach of the Federal First Coronavirus Response Act (FFCRA) paid sick leave requirements.

San Jose Ordinance

The San Jose ordinance covers employers not otherwise covered by the FFCRA (i.e., small employers with fewer than 50 employees that qualify for an exemption and large employers with over 500 employees). Employees who work at least two hours within the City of San Jose are eligible for leave under the ordinance. The ordinance defines “employee” pursuant to the ABC standard adopted in California under AB 5.

Employees are eligible for up to 80 hours of sick leave due to the same five conditions outlined in the FFCRA (see Like with the FFCRA, employees who are able to work from home during quarantine or due to a shelter-in-place order are not covered under this ordinance. Employers that offer some other form of paid personal leave (i.e., vacation/sick time or PTO) that is beyond the 80 hours required by the ordinance are exempt. Employers that offer some personal leave, but less than 80 hours, must provide paid sick leave for the balance.

A spokesperson for San Jose Mayor Sam Liccardo has indicated that the ordinance has gone into effect and will be effective through December 31, 2020. Although vague, the ordinance also appears to require that employers provide some notice to employees.

On April 16, 2020, Governor Gavin Newsom signed an Executive Order that requires Hiring Entities to provide Food Sector Workers paid sick leave benefits mirroring those required under the Families First Coronavirus Response Act (FFCRA). The Executive Order defines “Food Sector Workers” to include workers in the retail food supply chain who perform pick-up, delivery, supply, packaging, retail, or preparation services. Eligible workers thus include grocery workers, restaurant and fast food workers, workers at warehouses where food is stored, and workers who pick up or deliver any food items. Key to this order is the definition of “Hiring Entity”—“any kind of private entity whatsoever… that has 500 employees or more in the United States.” Note that covered individuals need not be employed by the Hiring Entity. The Executive Order requires large entities to offer these benefits to any individual who provides services for or through the business, so “gig” workers who provide deliveries to large restaurant chains (but are employed by small local delivery services) would be entitled to paid leave via the larger restaurant conglomerate.

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