On March 18, 2020, Congress passed, and the President signed into law, the Families First Coronavirus Response Act (“FFCRA”) which provides for, among other things, emergency paid sick leave for employees who work for an employer that has fewer than 500 employees. Those employers with 500 or more employees were unaffected by the emergency paid sick leave provisions of the FFCRA and were not required to provide emergency paid sick leave to their employees.
The City of Los Angeles has now closed that gap.
On April 7, 2020, Mayor Eric Garcetti issued a Public Order Under City of Los Angeles Emergency Authority (“Order”) that adopts and modifies last week’s Los Angeles City Council Ordinance that takes aim at large employers and provides for supplemental paid sick leave that is requested due to COVID-19. The Order seeks to balance the interests of workers and businesses who have suffered catastrophic losses due to the pandemic while also avoiding unintentionally causing staffing shortages at hospitals and critical health facilities that are on the front lines.
The Order expires two weeks after the local emergency period is lifted.
Who Does the Order Apply to?
The Order applies to large employers who either have 500 or more employees within the City of Los Angeles or 2,000 or more employees within the United States (a “covered employer”).
An employee who is employed by the same covered employer during the time period of February 3, 2020 through March 4, 2020 and performs any work within the geographic boundaries of the City of Los Angeles, but is unable to work or telework, is entitled to supplemental paid sick leave as follows:
- A full-time employee who works at least 40 hours per week or is classified as a full-time employee by the covered employer, is entitled to 80 hours of supplemental paid sick leave. Supplemental paid sick leave is calculated based on the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.
- An employee who works less than 40 hours per week and is not classified as a “full-time” employee by the covered employer shall receive supplemental paid sick leave in an amount no greater than the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.
- Sick pay shall not exceed $511 per day and $5,110 in the aggregate.
When is Supplemental Paid Sick Leave Required?
A covered employer shall provide supplemental paid sick leave to an employee who requests such time off, either by written or oral request, if the employee takes time off work:
- Due to COVID-19 infection;
- Because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- Because 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;
- Because 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
- Because the employee needs to provide care for a family member whose senior care provider or whose school or childcare provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation. This provision is only applicable to an Employee who is unable to secure a reasonable alternative caregiver.
A covered employer may not require a doctor’s note or other documentation for the use of supplemental paid sick leave under this Order.
Are Covered Employers Entitled To A Retroactive Offset?
If a covered employer allowed an employee to take paid time off, other than previously accrued paid time off (such as accrued sick time, vacation, or PTO), on or after March 4, 2020 for any of the reasons set forth above, or in response to an employee’s inability to work due to COVID-19, such paid time off previously provided to the employee shall offset the supplemental paid sick leave requirements set forth by the Order hour-for-hour.
Is My Business Exempt From the Order?
The Order identifies certain specific circumstances that exempt an employer from the supplemental paid sick leave requirements of the Order, subject to certain restrictions:
- Emergency and health services personnel, including all 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, as well as health care workers.
- Critical parcel delivery employees who work for an employer that provides global parcel delivery services.
- Employees of government agencies working within the course and scope of their public service employment.
- Businesses and organizations that have been closed or not operating for a period of 14 or more days due to a city official’s emergency order due to COVID-19, or provided at least 14 days of leave.
- New businesses that started in the City of Los Angeles or relocated from outside the City of Los Angeles on or after September 4, 2019 through March 4, 2020.
- Employers with paid leave or paid time off policies that provide a minimum of 160 hours of paid leave annually.
- Employees subject to certain collective bargaining agreements.
How Will The Order Be Enforced?
An employee claiming a violation of this Order may bring an action in Superior Court of the State of California against a covered employer and may be awarded:
- Reinstatement to the position the Employee was discharged in violation of the Order;
- Back pay and Supplemental Paid Sick Leave unlawfully withheld, calculated at the employee’s average rate of pay; and
- Other legal or equitable relief the court may deem appropriate including reasonable attorneys’ fees and costs if the employee is the prevailing party.
The Order further prohibits any act of retaliation or discrimination against any employee who opposes any practice proscribed by the Order, for requesting to use or actually using Supplemental Paid Sick Leave under the Order, for participating in proceedings related to the Order, for seeking to enforce his or her rights under the Order by any lawful means, or for otherwise asserting rights under this Order.
