New Measure Adds Yet More Uncertainty to Employer Obligations

California employers must comply with all applicable state and supplemental local sick pay laws.  In the latest trend sweeping the state, Southern California municipalities including Los Angeles, Santa Monica and now San Diego have rushed to enact their own sick pay ordinances, leaving employers with a confusing, contradictory and ever expanding set of standards to follow.

Where the terms of one set of applicable laws contradict the other(s), employers must implement whichever provisions are most favorable to their employees. As more and more local ordinances continue to crop up, this headache-inducing task is easier said than done.

On August 18, 2014, the San Diego City Council originally approved its paid sick leave and minimum wage ordinance (Ordinance No. 20390). After the mayor vetoed the ordinance, it lay dormant until San Diego voters resurrected it on June 7, 2016.

Once the City officially certifies the election results, the ordinance will immediately go into effect.  The Office of the City Treasurer estimates the certification process will take place either the week of July 11 or July 18.

Under Ordinance Section 39.0104(a), employers must provide paid sick time to any “Employee,” i.e., any person who in one or more calendar weeks of the year performs at least two hours of work within San Diego’s geographic boundaries for an Employer.

Section 39.0105(b) requires Employers to provide an Employee with one hour of earned sick leave for every 30 hours worked within the city’s boundaries.

Section 39.0105(g) allows employers to limit an employee’s use of earned sick leave to 40 hours in a given year, but employers must allow employees to continue to accrue and carryover earned sick leave to the following year without any cap or limit.

The ordinance does not specify whether employers may provide paid sick leave benefit using the alternative advance/front-loading method available under the statewide law and, if so, whether the employer must carryover any unused hours into the following year.  See, Mandatory Paid Sick Leave for California Employers.

According to Section 39.0106(a)(6), in addition to using earned sick leave for the reasons specified under state paid sick leave law employees may also use earned sick leave when, by order of a public official due to a public health emergency, there is a closure of the employee’s place of business or the employee’s child’s school or child care provider.

This is an outline of the basic aspects of the currently-available ordinance.  For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

June 24, 2016