On April 7, 2020, Mayor Garcetti signed an emergency paid sick leave order that significantly changed what the City Council passed on March 27, 2020. The Order goes into effect immediately and will remain so until two calendar weeks after the expiration of the COVID-19 local emergency period.
While there are several exemptions, the Order applies to employers that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States. Employees covered by the Order are those who perform any work within the geographic boundaries of the City of Los Angeles and who were continuously employed by the same employer from February 3, 2020 to March 4, 2020.
The material provisions of the Order and exempted workers are set forth below.
Does the Order Apply to My Business?
The COVID-19 paid sick leave Order applies to employers with either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States. This amendment is a significant change, as the proposed March 27, 2020 ordinance covered all employers with 500 or more employees in the United States.
Does an Exemption Apply to My Business?
There are several key exemptions to the Order; if one of the exemptions applies, supplemental paid sick leave is not required. The six exemptions are as follows:
- New Business Exemption - New businesses that started in the City or businesses that 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. Construction businesses and film producers, however, do not qualify for this exemption.
- Governmental Agencies - The Order does not apply to employees of government agencies working within the course and scope of their public service employment.
- 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 COVID-19 order, or has already provided at least 14 days of leave, are exempt from the requirements of the Order;
- Employers Already Providing Generous Paid Leave - The order does not apply to employers who have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
- Emergency and Health Services Personnel - Employers who employ first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel, and related contractors and others working for emergency services providers, are exempt; and
- Critical Parcel Delivery - Employers of employees who provide global parcel delivery services.
Who Are the Covered Employees?
Employees who perform any work within the geographic boundaries of the City of Los Angeles and who were continuously employed by the same employer from February 3, 2020 to March 4, 2020.
When May Employees Use the Leave?
Covered employers are required to provide paid sick leave when an employee is unable to work or telework and the employee requests time off for any of the following reasons:
- Due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the Employee isolate or self-quarantine;
- The Employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
- The Employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
- The Employee needs to provide care for a family member whose senior care provider or whose school or child care provider (children under 18) closes 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.
How Is Paid Sick Leave Calculated?
- Full-time employees are eligible to receive up to 80 hours of COVID-19 paid sick leave. The pay is calculated based on the employee’s average two-week pay over the period February 3, 2020 to March 4, 2020 capped at $511 per day or $5,110 total.
- Part-time employees are eligible to receive COVID-19 paid sick leave in an amount no greater than the employee’s average two-week pay over the period of February 3, 2020 to March 4, 2020.
- Employees of joint employers are not entitled to double dip in the amount of paid sick leave they receive; rather, they are limited to the maximum of 80 hours of supplemental paid sick leave.
Can Employers Require Employees to Provide a Doctor’s Note?
No. Employers may not require a doctor’s note or other documentation for the use of this additional paid sick leave relating to COVID-19. Employees can request paid sick leave either in writing or orally. Employers can and should document the reasons for the leave request, however, should it be necessary for future FFCRA or FMLA purposes.
Can Employers Require Employees to Sign a Waiver of Rights?
No. Any waiver by an employee of any or all provisions of this Order is unenforceable.
What if Employers Have Already Provided Additional Paid Sick Leave?
If an employer has already provided paid leave since March 4, 2020 for COVID-19 related purposes, any hours will be offset against the 80-hour requirement. For example, if the employer already provided employees 40 hours of supplemental paid leave, it must only provide 40 more hours under this Order.
Exemption for Collective Bargaining Agreements
If a collective bargaining agreement is in place as of April 7, 2020 that does not address sick leave related to COVID-19, the employer must comply with this Order until the agreement is amended to expressly waive the terms.
Do I Need to Pay Accrued and Unused Supplemental Paid Sick Leave Upon an Employee’s Termination?
No. Consistent with prior California and Los Angeles City laws, the Order does not require employers to pay out unused paid sick leave to eligible employees at termination, resignation, retirement, or other separation from employment.
How Long Is the Order in Effect?
The final version of the Order signed by Mayor Garcetti provides that it shall be in effect until two calendar weeks after the expiration of the COVID-19 emergency period. Depending on when the emergency period is declared over, this could be significantly sooner than the December 31, 2020 date proposed in the March 27, 2020 ordinance agreed upon by the Los Angeles City Council.
What Are the Consequences of Not Following the Order?
Any employee claiming a violation of the Order may be awarded (a) reinstatement to the position the employee was discharged from in violation of the Order, (b) back pay and supplemental paid sick leave unlawfully withheld, and (c) attorneys’ fees and costs.
Employer COVID-19 Resources
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.