On April 7, 2020, Los Angeles Mayor Eric Garcetti suspended a paid sick leave ordinance by the Los Angeles City Council and signed an emergency order providing for mandatory paid sick leave for many large employers with essential employees working in the City of Los Angeles (L.A. Supplemental PSL), effective immediately.
Existing Los Angeles City paid sick leave laws already surpassed California state law mandates by providing twice the minimum allotment under state law. Under the existing Los Angeles City paid sick leave ordinance, employers were already required to provide employees with at least 48 hours (six days) of paid sick leave or one hour for every 30 hours worked.
The recent enactment of the federal paid sick leave provision of the Families First Coronavirus Response Act (FFCRA) applies only to companies with fewer than 500 employees. The L.A. Supplemental PSL now seeks to “bridge the gap” by creating mandatory paid sick leave for the Los Angeles employees of many larger employers who are not bound by the FFCRA.
Who is covered by L.A. Supplemental PSL and what are employees entitled to?
For an employee to be covered by the L.A. Supplemental PSL, they must meet all of the following criteria:
- They have been employed with the same employer from February 3, 2020 through March 4, 2020.
- They perform work within the geographic boundaries of the City of Los Angeles for the employer. (This determination may become complicated for employees working from home within the City’s boundaries but whose employer’s brick-and-mortar location is outside the City boundaries).
- The employer has at least 500 employees in the City of Los Angeles or 2,000 employees nationwide.
Covered employees are entitled to the following paid leave:
- An employee who works at least 40 hours per week or is classified as a full-time employee shall receive 80 hours of supplemental paid sick leave, calculated based on an employee’s average two-week pay over the period of February 3, 2020 to March 4, 2020.
- An employee who works fewer than 40 hours per week and is not classified as a full-time employee 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 to March 4, 2020.
- Employees can collect a maximum of $511 a day and $5,110 in the aggregate for leave taken under the L.A. Supplemental PSL.
Without being permitted to require a doctor’s note or other documentation, an employer’s duty to provide paid leave under the L.A. Supplemental PSL is triggered upon an oral or written request by the employee if the employee takes time off for any of the following reasons:
- The employee takes time off work due to a COVID-19 infection or because a public health official or health care provider requires or recommends that the employee isolate or self-quarantine to prevent the spread of COVID-19.
- The employee takes time off work 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 a weakened immune system.
- The employee takes time off work because the employee needs to care for a family member who is not sick but who a public health official or health care provider has required or recommended to isolate or self-quarantine.
- 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 caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation and the employee cannot secure a reasonable alternative caregiver.
What are the exemptions to The L.A. Supplemental PSL?
The L.A. Supplemental PSL includes seven different exemptions, as follows:
- Emergency and health services personnel: Employers of emergency personnel (as defined in paragraph 5(vi) of the City of Los Angeles Safer at Home Order) and health care workers (as defined by the California Government Code). The L.A. Supplemental PSL calls out several categories of workers who fall into these definitions.
- Critical parcel delivery: Employers of employees that provide “global parcel delivery services.”
- Generous leave: Employers with policies that provide a minimum of 160 hours of paid leave annually.
- New businesses: A business that relocated from outside of the City of Los Angeles between September 4, 2019 and March 4, 2020 and was not in business in the City of Los Angeles in the 2018 tax year. This exemption does not include constructions businesses or film producers.
- Government employees: Employees of government agencies working within the course and scope of their public service employment.
- Closed businesses: Any business or organization that was closed or not operating for 14 or more days due to a city official’s emergency order because of COVID-19 or provided at least 14 days of leave.
- Collective bargaining agreements (CBAs): CBAs that are in place as of April 7, 2020 may supersede the L.A. Supplemental PSL if the CBA contains “COVID-19 related sick leave provisions.” However, if the CBA expires or is otherwise open for renegotiation, it must expressly waive the L.A. Supplemental PSL in clear and unambiguous terms.
Interplay between existing sick leave laws and The L.A. Supplemental PSL
The supplemental sick leave is in addition to what employers are already mandated to provide. However, any paid leave under the order can be offset by every hour an employer allowed an employee to take paid leave, not including previously accrued hours, on or after March 4, 2020, for any of the reasons described above or in response to the employee’s inability to work due to COVID-19.
Notably, the qualifying events listed above are broader than those listed in the FFCRA. Also, under the FFCRA, certain qualifying events for paid sick leave are to be paid at two-thirds the employee’s regular rate subject to applicable caps. The L.A. Supplemental PSL contains the same pay caps but does not provide a reduced pay rate and does not extend the federal tax credits and reimbursements available to employers under the FFCRA.
Enforcement provisions and further guidance
The L.A. Supplemental PSL creates a private right of action for employees against employers who fail to comply or who retaliate against an employee who exercises rights under the law. Employees may recover back pay, reinstatement, and “other legal or equitable relief.” Notably, employers can also be held liable for attorney’s fees and costs to a prevailing employee.
The Office of Wage Standards of the Bureau of Contract Administration will be promulgating further rules and regulations to be posted online. The timeline for such guidance is unknown, but employers and employees will be able to rely on such further guidance in determining their rights and responsibilities under the L.A. Supplemental PSL.
Employers who have employees working in the City of Los Angeles and have more than 2,000 employees nationwide or 500 employees locally should contact their Reed Smith Labor and Employment attorneys immediately to discuss the impacts and implications of the L.A. Supplemental PSL.