On April 28, 2020, the Los Angeles County Board of Supervisors unanimously approved an interim urgency ordinance to require employers with 500 or more employees nationally to provide supplemental paid sick leave to covered employees working in unincorporated areas of Los Angeles County for qualifying reasons related to COVID-19.
The ordinance is aimed at employers who are not already covered by the Families First Coronavirus Response Act (FFCRA) or Governor Newsom’s Executive Order N-51-20 providing supplemental paid sick leave for covered food sector workers. It is unclear whether additional clarification on the new ordinance is forthcoming given that the law is silent on which county agency is responsible for implementation and enforcement. Below are the key parts of the ordinance.
Does the Ordinance Apply to My Geographical Area?
The ordinance only applies to employees who perform any work within the geographic boundaries of the unincorporated areas of Los Angeles County.
Does the Ordinance Apply to My Business?
The ordinance applies to private employers with 500 or more employees in the United States. The ordinance is silent as to how and when an employer calculates its size. Federal, state, and local government agencies are not considered employers under the ordinance.
Who Are the Covered Employees?
An “employee” under the ordinance is any individual who is employed on April 28, 2020, by an employer, and performs any work within the geographic boundaries of the unincorporated areas of the County of Los Angeles for an employer.
The ordinance contains a presumption that a worker is an employee, and the employer has the burden to demonstrate that a worker is an independent contractor instead.
Are Any Employees Excluded from Receiving Supplemental Paid Sick Leave Under the Ordinance?
Food sector workers (as defined in the California governor’s Executive Order N-51-20) are excluded from the definition of employee in the ordinance.
Employers may exclude employees who are emergency responders or healthcare providers from the leave requirement.
- Emergency Responder: An employee who provides emergency response services. This category includes, but is not limited to: 1) peace officers; 2) firefighters; 3) paramedics; 4) emergency medical technicians; 5) public safety dispatchers or safety telecommunicators; 6) emergency response communication employees; 7) rescue service personnel; and 8) employees included in the definition of emergency responder in the regulations issued by the U.S. Department of Labor.
- Healthcare Provider: The category of healthcare providers includes, but is not limited to: 1) medical professionals; 2) employees who are needed to keep hospitals and similar healthcare facilities well supplied and operational; 3) employees who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency; and 4) employees included in the definition of healthcare provider in the regulations issued by the U.S. Department of Labor.
When May Employees Use the Leave?
Employers shall provide supplemental paid sick leave to an eligible employee upon the written request (including requests made by email or text) if the employee cannot work or telework because:
- A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (stipulating the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened immune system);
- The employee needs to care for a family member (defined as the employee’s child, parent, or spouse) who is subject to a federal, state, or local quarantine order related to COVID-19 or has been advised by a healthcare provider to self-quarantine related to COVID-19; or
- The employee takes time off work because the employee needs to provide care for a family member whose school or child care provider ceases operations in response to a public health or other public official’s recommendation.
How Is Paid Sick Leave Calculated?
An employee who works at least 40 hours per week or who is classified as a full-time employee by the employer is entitled to receive 80 hours of supplemental paid sick leave. The leave is calculated based on the employee’s highest average two-week pay over the period of January 1, 2020, through April 28, 2020.
An employee who works less than 40 hours per week and who is not classified as a full-time employee by the employer is entitled to receive supplemental paid sick leave in an amount no greater than the employee’s average two-week pay over the period of January 1, 2020, through April 28, 2020.
Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.
In no event is an employee entitled to be paid more than $511 per day and $5,110 in the aggregate.
Can Employers Require Employees to Provide a Doctor’s Note?
Yes. An employer can seek the same documentation as allowed under the FFCRA, including related Department of Labor Rules and Regulations. However, an employee may begin using this leave before employer-requested documentation is obtained.
The Los Angeles County ordinance differs from other California local emergency paid leave ordinances as it explicitly allows employers to require a doctor’s note or other documentation to support an employee’s need to use supplemental paid sick leave. The ordinance is effective immediately until December 31, 2020.
Can Employers Require Employees to Sign a Waiver of Rights?
No. Any waiver by an employee of any or all provisions of this ordinance is unenforceable.
What if Employers Already Provide Emergency Paid Sick Leave Under Another Law?
If an employer has already provided paid leave for COVID-19-related purposes since March 31, 2020, beyond the employer’s regular or previously accrued leaves, each hour will be offset against the 80-hour requirement. The ordinance provides that employers cannot require employees use other paid or unpaid leave, time off, or vacation time an employer provides before using this new benefit.
Exemption for Collective Bargaining Agreements
Employees who are subject to a collective bargaining agreement (CBA) can expressly waive any or all of the law’s requirements if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.
What Conduct Is Prohibited Under the Ordinance?
Employers cannot discharge, reduce in compensation, or otherwise discriminate against any employee for:
- Opposing any practice the law proscribes;
- Requesting to use or actually using supplemental paid sick leave;
- Participating in proceedings related to the law;
- Seeking to enforce rights under the law by any lawful means; and/or
- Otherwise asserting rights under the law.
What Are the Consequences of Violating the Ordinance?
Any employee claiming a violation of the ordinance may be awarded:
- Back pay and supplemental paid sick leave unlawfully withheld, calculated at the employee’s average rate of pay;
- Other legal or equitable relief; and
- Attorneys’ fees and costs to prevailing employee.
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.