April 8, 2020 Los Angeles Issues Emergency Order Requiring Large Employers To Provide Supplemental Paid Sick Leave to Employees Who Cannot Work Due to COVID-19

On Tuesday night, the Mayor for the City of Los Angeles, Eric Garcetti, signed into law an emergency public order (“Order”) requiring employers with either (i) 500 or more employees in the City of Los Angeles, or (ii) 2,000 or more employees nationally, to provide up to 80 hours of paid sick leave to their employees who perform any work in the City of Los Angeles who are unable to work due to the COVID-19 pandemic.

The Order, titled “Supplemental Paid Sick Leave Due to COVID-19,” does not apply to employers covered by the federal Families First Coronavirus Response Act” (FFCRA). Rather, the Order is meant to address large employers that are not covered by the FFCRA (which applies to employers with fewer than 500 employees nationally).

1. When does the Order go into effect?

The Order is effective immediately.

2. What must employers provide?

Covered employers must offer up to 80 hours of “Supplemental Paid Sick Leave” for full-time employees (pro-rated for part-time employees) who work within the geographic boundaries of the City of Los Angeles.

3. Which employers are covered by the new law?

The Order applies to employers with either (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees nationally. However, the Order also contains several exemptions, as noted below.

4. Which employees qualify for the new paid sick leave benefits?

The Order defines an “employee” to include “an individual who performs any work” within the city of Los Angeles. This language is extremely broad, and notably, is even broader than the definition used in the city’s 2016 minimum wage ordinance, which defined an employee as any individual who “in a particular workweek performs at least two hours of work” within the city of Los Angeles.

To qualify for benefits, an employee must have worked for the same employer from February 3, 2020 through March 4, 2020.  

5. Are there any exemptions to coverage?

The Order contains several exemptions for employers:

  1. Emergency and Health Services Personnel. An employer of an employee who is either an emergency personnel or a health care work is exempt from the Order. Emergency Personnel refers to individuals specified in the April 1, 2020 City of Los Angeles Safer at Home Emergency Order Paragraph 5(vi), including all first responders, gang and crisis intervention workers, public health workers, emergency dispatchers, law enforcement, related contractors, and others working for emergency services providers. Health care workers encompass individuals described in the California Family Rights Act, including physicians or osteopathic physicians, or any other person determined by the Department of Labor to be capable of providing health care services under the Family and Medical Leave Act. 
  2. Critical Parcel Delivery. An employer of an employee that provides global parcel delivery services is exempt from the Order.
  3. Generous Leave. An employer with a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually is exempt from any obligation to provide Supplemental Paid Sick Leave to an employee that received the more generous paid leave.
  4. New Business Exemption. The Order exempts businesses that started in the City, or relocated from outside the City, on or after September 4, 2019 through March 4, 2020. To qualify, an employer could not have been in business in the City in the 2018 tax year. The Order provides that some businesses will not qualify for this new business exemption: Construction businesses, as defined in Section 21.30 b.1 of the Los Angeles Municipal Code, and film producers, as defined in Section 21.109 of the Los Angeles Municipal Code.
  5. Government. The Order does not apply to employees of government agencies working within the course and scope of their public service employment.
  6. Closed Businesses and Organizations. Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic, or which provided at least 14 days of leave, are exempt from the requirements of the Order.
  7. Collective Bargaining Agreements. A collective bargaining agreement in place on April 7, 2020, may supersede the provisions of the Order if it contains COVID-19 related sick leave provisions. If a collective bargaining agreement does not address COVID-19 related sick leave provisions, an employer must comply with the Order, unless and until the agreement is amended to expressly waive the provisions of the Order.

6. How much paid sick time are employees entitled to receive?

Full-time employees (those who work at least 40 hours per week or are classified by their employer as full-time) are entitled to 80 hours of Supplemental Paid Sick Leave.

Part-time employees (those who work less than 40 hours per week, or are classified by their employer as part-time) are entitled to Supplemental Paid Sick Leave up to their average two-week pay over the period of February 3, 2020 through March 4, 2020.

The amount of Supplemental Paid Sick Leave per employee is capped at $511 per day and $5,110 in total.

7. When can an employee use Supplemental Paid Sick Leave?

Employees will qualify for the Supplemental Paid Sick Leave benefit when they are unable to work (on premise or remotely) for any of the following four reasons:

  1. They have been advised by a public health official or healthcare provider to isolate or self-quarantine to prevent the spread of COVID-19;
  2. They are at least 65 years old or have a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. They are caring for a family member who is not sick but who public health officers or healthcare providers have required or recommended isolation or self-quarantine; or
  4. They are caring for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

Employers familiar with the FFCRA should note that the above qualifying reasons differ from the qualifying reasons for Paid Sick Leave under the FFCRA. Specifically, reason #2 is not a qualifying reason for FFCRA leave. In addition, reason #4 includes the need to care for a family member whose senior care provider temporarily ceases operations due to the pandemic. Finally, unlike the FFCRA, the Order does not require that benefits be provided to an employee who is exhibiting symptoms and awaiting a diagnosis.

9. What documentation can employers require?

Employers cannot require a doctor’s note “or other documentation” for the use of Supplemental Paid Sick Leave. Therefore, employers may not obtain any documentation confirming that an employee qualifies for Supplemental Paid Sick Leave. 

10. How long must employers provide these new benefits to eligible employees?

The Order is in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

11. Is the 80 hour Supplemental Paid Sick Leave benefit in addition to paid sick leave employers already give employees under state and local law or company policies?

Yes, but the Order includes an offset provision, which allows employers to reduce the required 80 Supplemental Paid Sick Leave benefit for every hour the employer allowed an employee to take COVID-19-related paid sick leave on or after March 4, 2020 for the qualifying reasons specified in the Order, or the employee’s inability to work due to COVID-19.

12. Can employees file civil claims under the Order?

Yes, the Order gives employees the right to file a civil action in Superior Court for any violations. An employee who prevails in such a claim may obtain reinstatement (if appropriate), back pay, Supplemental Sick Leave pay, and attorneys’ fees and costs.

What This Means

Economic upheaval resulting from the COVID-19 pandemic has permeated nearly every industry and workforce. Many workers are facing significant job and economic insecurity. The federal response was limited to employers with fewer than 500 employees, and this Order extends those benefits to employees who work in the city of Los Angeles for employers with either (i) 500 or more employees in the City of Los Angeles or (ii) 2,000 or more employees in the United States.  

Covered employers should prepare to meet their obligations to provide eligible employees with paid leave benefits mandated under the Order. 

AUTHORS
Mary Allain   Mike Sullivan

For further information, questions, or assistance regarding paid sick leave benefits, please contact us. PPSC has a dedicated COVID-19 response team and is committed to assisting our valued clients through these challenging and fast-changing times.