August 14, 2020

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August 14, 2020

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The City of Los Angeles Mandates Supplemental Paid Sick Leave Effective Immediately

California and Los Angeles currently require covered employers to provide eligible employees with paid sick leave benefits.  Effective immediately, the City of Los Angeles now requires employers that have either 500 or more employees in the City or 2,000 or more employees nationally to provide supplemental paid sick leave of up to two weeks (80 hours) for reasons related to COVID-19.

The Ordinance comes on the heels of the federally-enacted Families First Coronavirus Response Act (“FFCRA”), which similarly provides for two weeks of paid leave to eligible workers, but only covers employers with less than 500 employees.  (We previously reported on employers’ obligations under the Families First Coronavirus Response Act here.)  By covering employers with more than 500 employees in the City or 2,000 nationally, the Ordinance fills a gap left by the FFCRA and, together, these laws effectively obligate almost every employer in the City to provide some form of supplemental paid sick leave.

The key provisions of the Ordinance are below:

Who is Eligible for Supplemental Paid Sick Leave?  All employees who have been employed with the same employer from February 3, 2020 through March 4, 2020 are entitled to supplemental paid sick leave.

Notably, the Ordinance defines “employee” broadly to include any individual who performs any work within the geographic boundaries of the City for an employer.  For purposes of the Order, an Employer is a person in Section 18 of the California Labor Code, including a corporate officer or executive, who directly 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.

Employees are entitled to supplemental paid sick leave if they are unable to work or telework for any of the following reasons:

  1. The employee has COVID-19 or 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 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 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
  4. The employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a minor child has temporarily closed in response to COVID-19. To receive supplemental paid sick leave, the employee must be unable to secure a reasonable alternative caregiver.

Employees cannot waive their right to any or all of the provisions of the Ordinance.

How Are Employees Supposed to Request Supplemental Paid Sick Leave?  Employees can make either an oral or written request.  The employer cannot require a doctor’s note or other documentation for the use of supplemental paid sick leave.

How Much Leave Are Employees Entitled To?  Like the federal law, full-time employees are entitled to 80 hours of supplemental paid sick leave.  Employees who work less than 40 hours per week and are not classified as “full-time” by their employer are entitled to the average number of hours they worked over a two week period between February 3, 2020 through March 4, 2020.

How Much Are Employees Required to Be Compensated?  The amount of supplemental paid sick leave is equivalent to an employee’s average two week pay over the period of February 3, 2020 through March 4, 2020, maxing out at $511 a day and $5,110 in total.

Can Employers Offset the Amount of Supplemental Paid Sick Leave for Other Paid Leave Provided to the Employee?  Yes. Under the Ordinance, the employer’s obligation to provide 80 hours of supplemental paid sick leave is reduced for every hour the employer allowed the employee to take other paid leave in an amount equal to or greater to the new ordinance’s requirements (not including previously accrued hours) for any of the reasons listed in 1-4, above.

What About Health Care Providers and Emergency Responders?  An Employer of an Employee who is either Emergency personnel or a health care worker shall be exempt from this Order.  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 crises 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 shall encompass 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.

Are There Any Exemptions for Certain Types of Employers?  Yes.  The following types of employers are exempt from providing supplemental paid sick leave.

  1. Critical Parcel Delivery: Employers that provide global parcel delivery services.
  2. Generous Leave Policies: Employers that have a paid leave or paid time off policy that provides at least 160 hours of paid leave annually do not have to provide supplemental leave to any employee that received the more generous leave.
  3. New Businesses: Employers that started business in the City or employers who relocated from outside the City on or after September 4, 2019 through March 4, 2020.  To qualify, employers must not have been in business in the City in the 2018 tax year.  Certain construction businesses and film producers do not qualify for this exemption.
  4. Government: Government agencies do not have to provide supplemental leave to employees working within the course and scope of their public service employment.
  5. Closed Businesses: Employers that were closed or not operating for at least 14 days due to a city official’s emergency order related to COVID-19 or who provided at least 14 days of leave.

What About Collective Bargaining Agreements?  The terms of a bargaining agreement in effect on April 7, 2020 supersede the Ordinance if it contains COVID-19 related sick leave provisions.  If not, the employer must comply with the Ordinance until the agreement is amended to expressly waive the provisions of the Ordinance.  An agreement that expires or becomes open for renegotiation may expressly waive the provisions of the Ordinance.

What Are the Legal Consequences for Violating the Ordinance?  The Ordinance provides a private right of action to employees for violations and permits employees to seek civil remedies, including reinstatement, back pay, supplemental paid sick leave at the rate of the employee’s average rate of pay, and reasonable attorneys’ fees and costs.

The Ordinance goes into effect immediately and will remain in effect until two weeks after the COVID-19 local emergency period ends.

NEW!! Check out Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics

*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship. 

 Coronavirus, FFCRA

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 99

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About this Author

Kelly L. Hensley Labor & Employment Attorney Sheppard Mullin Los Angeles, CA
Partner

Kelly Hensley is a partner in the Los Angeles office and is Leader of the firm's Labor and Employment Practice Group. She specializes in labor and employment counseling and wage and hour matters.

Areas of Practice

Compliance Audits.  Ms. Hensley regularly conducts wage-hour and HR-related compliance audits for companies of all sizes.  Ms. Hensley helps clients create compliance programs designed to meet state and federal requirements. 

Employment...

213-617-5441
Whtney Nonnette Perry, Discrimination Attorney, Sheppard Mullin Law Firm, Litigation, LA
Associate

Whitney Nonnette Perry is an associate in the Labor and Employment Practice Group in the firm's Los Angeles office.

Her practice is focused on defending Fortune 500 companies in a broad range of civil lawsuits. Ms. Nonnette Perry has successfully resolved claims for discrimination, harassment, retaliation, wage and hour violations, unfair labor practices, wrongful termination, intentional infliction of emotional distress, breach of contract, and defamation at all stages of litigation. 

213.617.4240