The Marin County, California Board of Supervisors has enacted an urgency ordinance that requires employers in the County’s unincorporated areas with 25 or fewer employees to provide supplemental paid sick leave (SPSL) for certain COVID-19-related reasons through September 30, 2021. The ordinance was enacted on June 8, 2021, and took effect immediately.

Covered Employers, Employees & Family Members: The ordinance applies to employers in the County’s unincorporated areas that employ 25 or fewer employees. Although the law is silent on how to calculate business size, staff reports and comments during the Board’s meeting make clear local legislators intend this ordinance to cover employees to whom California’s statewide law does not apply (the state law applies to employers with 26 or more employees).

The ordinance applies to employees who worked for an employer for more than two hours in the County’s unincorporated boundaries. The law presumes workers are employees, so the burden is on employers to demonstrate an individual does not qualify by virtue of being an independent contractor according to state law. There is no exception for employers with unionized workforces.

Covered employees can use SPSL for their own personal reasons or to care for or assist an “individual,” which includes an employee’s immediate family member, a person who regularly resides in the employee's home, and a person with whom the employee has a relationship that creates an expectation that the employee would care for the person if quarantined or self-quarantined, or when their senior care provider, school, or childcare provider closes or is unavailable in response to a public health or other public official’s recommendation. An “individual,” however, does not include a person with whom the employee has no personal relationship.

Amount of Leave: Under the ordinance, full-time employees normally scheduled to work 40 or more hours per week are entitled to receive 80 hours of SPSL, whereas other employees receive an amount of SPSL equal to their average number of work hours in a two-week period, which employers must calculate over the prior six months.

Under the ordinance, SPSL hours are in addition to any paid sick leave that may be available to the employee under California’s Healthy Workplace Healthy Family Act and pre-existing paid time off (vacation, sick and/or PTO) benefits provided to employees before March 16, 2020. Employers cannot require employees to use other benefits they provide before employees can use SPSL. But, if as of June 8, 2021 an employee had at least 80 hours of accrued paid sick leave benefits or at least 160 hours of a combination of paid sick leave, vacation and paid time off benefits, an employer’s obligation to provide SPSL is satisfied; to the extent an employee has fewer than the requisite 80 or 160 hours, an employer must provide SPSL to account for the difference.

Additionally, employers can offset their SPSL obligation by the amount of COVID-19 paid sick leave hours already furnished to an employee under the federal FFCRA or Cal/OSHA regulations, as well as any future substantially similar state or federal COVID-19 paid sick leave legislation.

Covered Uses: The ordinance discusses covered SPSL uses in two separate places, generally and with respect to employees who are healthcare providers or emergency responders; however, for all intents and purposes, these are (nearly) identical reasons, with only a slight difference for the latter types of employees (which the law defines according to the federal FFCRA). Covered uses are as follows:

• Employee has been advised by a health care provider to isolate or self-quarantine, or is caring for an individual so advised.
• Employee is subject to a federal, state, or local quarantine or isolation order due to COVID-19, or is caring for an individual subject to such an order.
• Employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis, or is caring for an individual experiencing such symptoms.
• Employee is caring for an individual whose school, senior or childcare provider, is closed or unavailable due to COVID-19.
  
  • Employers of a healthcare provider or emergency responder can deny a leave request if they make a good-faith determination that granting leave would create a staffing shortfall such that operational needs dictate denial of some or all of the leave request.
• Obtaining a COVID-19 vaccine or experiencing symptoms related to the vaccine that prevent the employee from being able to work or telework.

Note that the ordinance’s “general” provisions state that employers need not provide SPSL to employees who can work from home. The ordinance’s “health care provider and emergency responder” provision provides employees can use leave if they have COVID-19 or are caring for someone with the virus.

Using Leave: Employers can require employees to follow reasonable notice procedures only for foreseeable absences and can require employees to identify the basis for leave but cannot require employees to furnish a doctor's note or other supporting documentation. Employers can take reasonable measures to confirm an employee’s eligibility for leave.

Rate of Pay: Employers must pay employees using SPSL at their regular rate of pay – although the ordinance does not address how to calculate this rate – but employers need not pay more than $511 per day, or $5,110 overall when an employee uses SPSL.

Notice, Poster & Recordkeeping: Within three days of the County’s publishing the ordinance, employers must provide notice, in English and Spanish, to employees of their rights under the ordinance in a manner calculated to reach all employees, including posting a notice in the workplace, on any intranet or app-based platform and/or via email. The ordinance further requires that for at least three years, employers must keep a record of each employee’s name, hours worked, and pay rate.

Prohibitions: Employees cannot waive their rights under the ordinance. Employers cannot require employees to find replacement workers as a conditioning of using leave. Additionally, employers cannot discharge, reduce in compensation, or otherwise discriminate against any employee for exercising their protected rights under the ordinance.

Enforcement: Employees can file a civil lawsuit against employers in state court and, if they prevail, a judge can award them reinstatement, back pay and any SPSL withheld, other appropriate legal or equitable relief, along with reasonable attorneys’ fees and costs.