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LA Mayor Signs Emergency Paid Sick Leave Order (With Significant Revisions) Into Law
Apr 8, 2020

LA Mayor Signs Emergency Paid Sick Leave Order (With Significant Revisions) Into Law

Topics: COVID-19

Late yesterday evening, LA’s mayor signed an emergency paid sick leave Order into law, effective immediately.  The final Order is significantly different than the version of the ordinance passed by the City Council on March 27, 2020, particularly in that the final order contains several exemptions.  Note that the LA Office of Wage Standards is tasked with publishing rules and regulations concerning the new Covid-19 paid sick leave requirements.  Those are not yet available.  Here are the material details of the Order:

Covered Employers

The Covid-19 paid sick leave Order applies to employers that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States. 

Covered Employees

Employees covered by the Order are those who perform any work within the geographic boundaries of the City of Los Angeles and who were continuously employed by the same employer from February 3, 2020 to March 4, 2020.

Covered Reasons for Use of Supplemental Covid-19 Paid Sick Leave

Covered employers are required to provide paid sick leave for any of the following reasons:

  1. The Employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the Employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. 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 weakened immune system;
  3. The Employee takes time off work 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;
  4. 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 child care 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.

Amount of Paid Sick Leave

A full-time employee (those who work 40 hours per week or are classified as full-time by the employer) must be provided with 80 hours of Covid-19 paid sick leave.  The pay is calculated based on the employee’s average two-week pay over the period February 3, 2020 to March 4, 2020.  An employer need not pay an employee more than $511 per day or $5,110 in the aggregate, however.

A part-time employee must be provided with Covid-19 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, again subject to a cap of $511 per day and $5,110 in the aggregate.

Processing Covid-19 Paid Sick Leave Requests

An employee can make an oral or written request to use Covid-19 paid sick leave.  An employer may not require a doctor’s note or other documentation to support the use of leave.

Offset

An employer’s obligation to provide supplemental Covid-19 paid sick leave under the Order is reduced for every hour of paid leave the employer provided to an employee, not including the employee’s previously accrued hours, for Covid-19 reasons after March 4, 2020.  In other words, the offset appears only to apply to ADDITIONAL paid time off provided by an employer to employees for Covid-19 reasons, over and above any paid sick leave or vacation accruals under pre-existing employer policies, after March 4, 2020.

Exemptions

The Order exempts the following:

  1. Emergency and Health Services Personnel. Emergency Personnel refers to individuals specified in the April 1, 2020 City of Los Angeles Safer at Home emergency order Paragraph 5(vi), 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. A health care worker encompasses individuals described in California Government Code Section 12945.2(c)(6) or individuals, including contract workers, working at a health facility licensed under California Health & Safety Code Section 1250.
  2. Critical Parcel Delivery Employers. The Order states that employers of employees that provide global parcel delivery services are exempt.
  3. Employers That Already Have Generous Leave Policies. If an employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the employer is exempt from any obligation to provide supplemental leave pursuant to the Order for the employee that received the more generous paid leave.
  4. New Business Exemption. The Order exempts new businesses that started in the City or businesses that relocated from outside the City on or after September 4, 2019 through March 4, 2020. To qualify, an employer could not have been in business in the City in the 2018 tax year. However, the following businesses do not qualify for the new business exemption:  construction businesses as defined in Section 21.30 b.1 of the Los Angeles Municipal Code or film producers as defined in Section 21.109 of the Los Angeles Municipal Code.
  5. Government. The Order does not apply to employees of government agencies working within the course and scope of their public service employment.
  6. Closed Businesses and Organizations. Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave are exempt from the requirements of the Order.
  7. Collective Bargaining Agreements:  Employees covered by CBAs that include Covid-19 sick leave provisions are not covered by the Order.  If a CBA does not provide Covid-19 sick leave provisions, employers must comply with the Order unless and until the CBA is amended to expressly waive the provisions of the Order.

Enforcement

The Order of course prohibits retaliation against an employee for exercising rights under the Order.  An employee whose rights are violated may bring a civil action seeking, as applicable, reinstatement, back pay and paid sick leave unlawfully withheld, and attorneys’ fees and costs.

No Waiver of Rights

An employee may not waive his/her rights under the Order.

Expiration

The Order is in effect until two calendar weeks after the expiration of the local Covid-19 public health emergency.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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