Retroactive COVID-19 Supplemental Leave Benefits Take Effect in Unincorporated Los Angeles
Prompted by expiring state and federal emergency leave laws, the Los Angeles County Board of Supervisors recently enacted an urgency ordinance that revises its earlier Worker Protection Ordinance, which now provides paid leave to nearly all employees working in unincorporated areas of the county. This 2021 urgency ordinance takes effect immediately and is retroactive to January 1, 2021.
The 2021 ordinance provides all employees, regardless of the size of the employer, who are not food sector workers, healthcare providers, or first responders—as defined by Governor Newsom's Executive Order N-51-20 and California's Assembly Bill 1867—and who perform work in unincorporated areas of Los Angeles County, with COVID-19-related leave entitlement. (Click here to identify if your business or employees are performing work in unincorporated Los Angeles County.)
The 2021 ordinance requires employers to provide employees who work at least 40 hours per week, or who are classified as full-time employees, with 80 available hours of supplemental paid sick leave for COVID-19-related absences. Employees who work less than 40 hours per week are entitled to supplemental paid sick leave in an amount up to the average of their two-week pay (based on the actual number of hours worked or average wages earned) for the period from January 1, 2020, through the effective date of this ordinance.
This may mean that an employee who has experienced reduced hours or a change in work status due to COVID-19-related business reasons will be eligible for more than they currently earn due to past earnings. The 2021 ordinance, however, does not obligate an employer to compensate employees for more than the $511 per day and $5,110 in the aggregate.
If these rules sound familiar, it is because they closely track the Los Angeles County's 2020 ordinance. See our earlier advisory with more details here.
Who Is an Employee for Purposes of This 2021 Ordinance?
"Employee" is defined as an individual who performs any work within the geographic boundaries of Los Angeles County for a covered "employer." A worker is presumed to be an "employee," and the burden is on the employer to demonstrate that a worker is a bona fide independent contractor and not an employee.
Who Is an Employer?
"Employer" is defined as a person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any "employee" in unincorporated areas of Los Angeles County.
For the period from March 31, 2020, to December 31, 2020, the ordinance only applied to employers with 500 or more employees nationally. Effective January 1, 2021, however, the ordinance applies to all employers in unincorporated areas of Los Angeles County.
When May Employees Use Supplemental COVID-19 Leave Benefits?
The 2021 ordinance requires employers to provide paid sick leave to employees if the employee is unable to work (or telework) for one of the following reasons:
- A public health official or health care provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19.
- The employee is subject to a local, state, or federal quarantine or isolation order related to COVID-19 (for example, 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 subject to a local, state, or federal quarantine or isolation order or has been advised by a healthcare provider to self-quarantine related to COVID-19.
- The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider ceases operations in response to a public health or other public official's recommendation.
Notably, the Los Angeles County ordinance differs from other California local emergency paid leave ordinances as it expressly allows employers to require a doctor's note or other documentation to support an employee's need to use supplemental paid sick leave.
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 rate of pay for the supplemental paid sick leave is calculated based on the employee's highest average two-week pay over the period of January 1, 2020, through the effective date of the Chapter for this ordinance.
An employee who works less than 40 hours per week and who is not classified by the employer as a full-time employee is entitled to receive supplemental paid sick leave at a rate of pay that is equal to the employee's average two-week pay over the period of January 1, 2020, through the time when Los Angeles County declares that this ordinance is no longer in effect.
Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer. For example, if an employee receives weekly paychecks for work performed on a construction project from Company A, but reports to work and receives instructions from Company B, only one entitlement will be available to cover COVID-19-related leaves of absence. This means that the employee, as the ordinance is written, will be entitled to supplemental leave benefits from only one of its joint employers.
In no event is an employee entitled to be paid more than $511 per day and $5,110 in the aggregate. Additionally, if the employee had exhausted supplemental sick leave benefits under this ordinance or the federal Families First Coronavirus Response Act, the employee would not be eligible for any additional allotment of supplemental sick leave under this 2021 ordinance.
Expiration and Local Jurisdictions
The 2021 Los Angeles County ordinance will not expire until two calendar weeks after the COVID-19 local emergency ends, as declared by the County. Because many California cities and counties tied their adoption of COVID-19 supplemental leave benefits to what is now expired state and federal law, local governments are enacting ordinances that extend prior existing law. See the links below for such ordinances for other major California cities.
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.