The Los Angeles County Board of Supervisors recently enacted an urgency ordinance that requires employers to provide supplemental paid leave of up to four hours per injection for employees working in unincorporated areas of Los Angeles County to obtain the COVID-19 vaccine. The Employee Paid Leave for Expanded Vaccine Access Ordinance (the Ordinance) is effective retroactively to January 1, 2021 and will remain in effect until August 31, 2021.
Covered employers and eligible employees
The Ordinance applies to all employers who have employees working in the unincorporated areas of Los Angeles County. The Ordinance establishes a presumption that a worker is an employee and the employer bears the burden to demonstrate that a worker is a bona fide independent contractor, and thus not entitled to any benefits under the Ordinance.
Covered employers must provide “COVID-19 Vaccine Leave” to eligible employees to:
- Travel to and from a COVID-19 vaccine appointment;
- Receive the COVID-19 vaccine injection; and
- Recover from any symptoms related to receiving the COVID-19 vaccine that prevent the employees from being able to work or telework.
Eligible employees are those who: 1) work in the unincorporated areas of Los Angeles County; and 2) have exhausted all available leave time under California’s 2021 COVID-19 Supplemental Paid Sick Leave Law, codified as Labor Code section 248.2. In other words, because Labor Code section 248.2 already requires employers to provide up to 80 hours of paid leave to employees for the same reasons as the Ordinance, employees must first use all available paid leave provided by Labor Code section 248.2 before they are eligible for paid leave under the Ordinance.
Amount of leave and rate of pay
Full-time employees are entitled to up to four hours of supplemental paid leave (i.e., in addition to the paid sick leave required by California’s Healthy Families Healthy Workplace Act) per injection to receive a COVID-19 vaccine. Part-time employees are entitled to a prorated amount of four hours per injection based on their normally scheduled work hours over the 2-week period preceding the injection.
For example, an employee who works 20 hours per week and receives the Pfizer vaccine would be entitled to two hours of COVID-19 Vaccine Leave for each injection, for a total of four hours of leave. A full-time employee who receives the Johnson & Johnson single dose vaccine would be entitled to four hours of COVID-19 Vaccine Leave for the single injection.
Employees must be paid at their normal rate of pay for COVID-19 Vaccine Leave, calculated based on an employee’s highest average two-week pay over the period of January 1, 2021 through the effective date of the Ordinance (May 18, 2021).
Employers may require employees to provide written verification of receipt of the COVID-19 vaccine in order to receive COVID-19 Vaccine Leave. If an employee’s written verification contains medical information, like a vaccine card, employers must treat such information as confidential medical information and keep such records separate from the employee’s personnel file, per guidance from the Department of Fair Employment and Housing.
Protection against retaliation
The Ordinance prohibits employers from refusing to employ, terminating, reducing compensation, or otherwise taking any adverse action against any person seeking to enforce their rights under the Ordinance, participating in proceedings related to the Ordinance, opposing any practice proscribed by the Ordinance, or for otherwise asserting rights under the Ordinance.
Employers are required to post a written notice prepared and made available by the Los Angeles County Department of Consumer and Business Affairs (DCBA) in a conspicuous place. As of the time of writing, the DCBA has not yet released the required written notice, but employers should check their website for updates.
Record keeping requirements
Employers are required to keep records demonstrating their compliance, which includes, for each employee, payroll records documenting the employee’s name, address, occupation, dates of employment, pay rate(s), and amount paid for four years. Employers are required to 1) allow the DCBA access to such records, 2) allow the DCBA to interview personnel during normal business hours, and 3) cooperate with the DCBA investigators. Failure to comply with the record keeping requirements of the Ordinance, or provide the DCBA access to such records, creates a rebuttable presumption that the employer violated the terms of the Ordinance.
Exemptions for collective bargaining agreements
Any or all provisions for the Ordinance may be waived in a collective bargaining agreement, but only if the waiver is “explicitly set forth in the agreement in clear and unambiguous terms.” Unilateral implementation of terms and conditions by either an employer or union who are parties to a collective bargaining agreement is insufficient to waive any or all of the requirements of the Ordinance.