Effective now throughout unincorporated San Mateo County, the San Mateo County Board of Supervisors passed an emergency ordinance supplementing FMLA and the extended FMLA and EPSLA, created by the Federal Families First Coronavirus Response Act.  The emergency ordinance provides forty hours of supplemental paid sick leave for qualifying full-time employees who work at large employers.  Which employees are covered, and what are their rights?  This article examines employee rights under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance.

What Employees Does the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance Cover?

Any employee who has worked in unincorporated San Mateo County since January 1, 2020, qualifies for San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance protections.  The Ordinance covers undocumented workers.  Foodservice workers are excluded from the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance.  Foodservice workers are any individuals that satisfy any of the following:

  • The worker works in the canning, freezing, and preserving industry, industries handling food products after harvest, certain workers preparing agricultural products for market when performed on a farm, and workers employed in a farming occupation;
  • The worker works for an employer that operates a food facility; or,
  • The worker delivers food from a food facility for or through an employer. California Executive Order N-51-20.

What Employers Does the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance Cover?

The San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance covers employers with 500 or more employees anywhere in the United States.  Employees include temporary service or staffing agency hires, agents, or any person upon which they controls wages, hours, or working conditions. Notably, the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance exempts government agencies.

What Benefits Do Covered Employees Receive Under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance?

Covered employees in San Mateo County are entitled to supplemental paid sick leave hours as follows:

  • Full-time employees normally scheduled to work forty or more hours per week receive eighty (80) hours of supplemental paid sick leave;
  • Part-time employees normally scheduled to work fewer than forty hours per week receive forty (40) hours of supplemental paid sick leave in an amount no greater than the individual employee’s average number of work hours in two-weeks, calculated from January 1, 2020, through July 7, 2020.

What Amount of Supplemental Paid Sick Leave Will A Covered Employee Receive Under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance?

An employee out on supplemental paid sick leave shall receive their regular pay.  Unlike its federal counterpart, the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance does not connect compensation based on the reason for taking leave.  However, the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave’s supplemental paid sick leave is capped at $511 per day, and $5,110 total.

What Reasons Support A Request for Leave Under San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave?

Under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave ordinance, employees are entitled to supplemental paid sick leave where:

  • The employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of the Coronavirus/COVID-19;
  • The employee is experiencing Coronavirus/COVID-19 symptoms and is seeking a diagnosis;
  • The employee needs to care for an individual who has been ordered by the government or a health care provider to isolate or quarantine due to the Coronavirus/COVID-19, or is experiencing Coronavirus/COVID-19 symptoms and is going to get diagnosed; or,
  • The employee needs time off to care for a person whose senior care provider or school or daycare has closed or is unavailable in response to a public officials’ recommendation.

How Can Employees Request Supplemental Paid Sick Leave?

 Employers must grant an employee’s written request for supplemental paid sick leave under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave.  Employees may send requests via text message or email.

Can Employers Request Information Supporting the Supplemental Paid Sick Leave Request?

Yes.  The employer may request that the employee provide additional material that will support the employer’s request such as a copy of the quarantine or isolation order, the name of the individual for whom the employee is providing care, or the name of the closed school.

Which Employees Are Exempt from the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave?

Employees employed by the following employers are exempt from the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave ordinance:

  • Health care providers;
  • Aviation security workers performing work for the TSA, where the employer determines that granting the leave hinders airport operations;
  • Emergency responders, except where the employee is unable to work due to needing to isolate or self-quarantine to prevent the spread of the Coronavirus/COVID-19, or the employee is experiencing Coronavirus/COVID-19 symptoms and is seeking a diagnosis and does not meet the CDC’s criteria to return to work for healthcare workers with confirmed or suspected Coronavirus/COVID-19.

Will Using Paid Sick Leave Under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave  Deplete Normal California Paid Sick Leave?

The San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave’s supplemental paid sick leave hours are in addition to normal California paid sick leave provided under California Labor Code section 246.  Under California Labor Code section 246, qualifying full-time California employees are entitled to a minimum of 24 hours of paid sick leave every twelve months.

Where the employer-provided additional paid leave specifically for the Coronavirus/COVID-19, not related to normal leaves, between March 17 and June 30, 2020, the obligation to provide supplemental paid leave under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave ordinance shall be reduced for every hour the employee took leave.  Where the hourly compensation was less than the benefit provided by supplemental paid sick leave, the amount previously provided is offset against the benefit.

Can Employers Require Employees Use Other Leave Ahead of the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave’s Supplemental Paid Sick Leave?

No.  As provided by the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance, San Mateo County employers may not force employees, “to use any other paid or unpaid leave, paid time off, or vacation time…before the [e]mployee uses supplemental paid sick leave…”

On What Date Did The San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance Take Effect?

 The San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance took effect on July 8, 2020.  Covered employers had an obligation to provide benefits on that date.

How Long Does the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance Last?

The San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance is effective until December 31, 2020, unless the San Mateo County Board of Supervisors extends it.

Can Employers Retaliate Against Employees for Exercising Their Right to Supplemental Paid Sick Leave?

No.  Employers may not retaliate against employees exerting their right to supplemental paid sick leave under the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance.  Retaliation includes, but is not limited to, discharge, reduction in hours or compensation, discrimination, or forcing the employee to use other leave. An employee may not waive the rights provided by the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance.

What Can Employees Do When Employers Violate the San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance?

The San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance contains a private right of action.  Employees who are denied their rights under the ordinance may bring an action in court for reinstatement, back pay, supplemental paid sick leave calculated at the employee’s average compensation rate, and other damages.  Further, the employee can recover their attorney fees and court costs as part of the recovery.

Click here to read the unabridged San Mateo County Coronavirus/COVID-19 Emergency Paid Sick Leave Ordinance.