September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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Los Angeles County Enacts Supplemental Paid Sick Leave Ordinance Effective Immediately

Los Angeles County enacted an ordinance requiring employers with 500 or more employees nationally and that are not otherwise covered by the federal Families First Coronavirus Response Act and Governor Newsom’s Executive Order N-51-20 to provide employees with supplemental paid sick leave for COVID-19 related reasons.  The City of Los Angeles previously passed a similar ordinance, but the County ordinance expands the coverage for supplemental paid sick leave to employees outside the City’s geographic boundaries.

While the ordinance became effective on April 28, 2020, employers’ obligation to provide supplemental paid sick leave is retroactive to March 31, 2020.

The key provisions of the ordinance are below:

Who is Eligible for Supplemental Paid Sick Leave?  Any employee who performs work within the geographic boundaries of Los Angeles County for an employer as of April 28, 2020, is eligible to take supplemental paid sick leave for any of the enumerated reasons below.  The ordinance excludes food sector workers covered by Governor Newsom’s Executive Order N-51-20.

Notably, the ordinance defines “employee” broadly to include any individual who performs any work within the geographic boundaries of Los Angeles County for an employer.  As a caution to employers, the ordinance expressly states all workers are presumed to be “employees” under the ordinance, which would include workers classified as independent contractors, and the employer has the burden to demonstrate otherwise.

When Can Employees Use Supplemental Paid Sick Leave?  All eligible employees are entitled to supplemental paid sick leave if they are unable to work or telework for any of the following reasons:

  1. A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine for reasons related to COVID-19;

  2. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19 (e.g., 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 subject to a federal, state or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or

  4. The employee needs to provide care for a family member whose senior care provider or whose school or child care provider ceases operations in response to a public health or other public official’s recommendation.

How Do Employees Request Supplemental Paid Sick Leave?  Unlike the City ordinance, which allows both oral and written requests, the County ordinance only permits written requests.  Also unlike the City ordinance, the County ordinance expressly permits employers to require doctor’s notes or other documentation for the use of leave.

How Much Leave Are Employees Entitled To?  All 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 employers are entitled to the average number of hours they worked over a two week period between January 1, 2020 through April 28, 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 January 1, 2020 through April 28, 2020, maxing out at $511 a day and $5,110 in total.

Can Employers Require Employees to First Use Other Paid or Unpaid Time Off?  No, the ordinance prohibits employers from requiring employees to use any other paid or unpaid leave, paid time off, or vacation time provided by the employer to the employee before the employee uses supplemental paid sick leave, or in lieu of supplemental paid sick leave.

Can Employers Offset the Amount of Supplemental Paid Sick Leave for Other Paid Leave Provided to the Employee?  Yes.  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 after March 31, 2020 for any of the reasons listed in 1-4, above.

What About Health Care Providers and Emergency Responders?  These employees are generally excluded under the federal and City laws.  The County ordinance gives employers the option to provide supplemental paid sick leave to employees who are emergency responders or health care providers.

An “emergency responder” means an employee who provides emergency response services and includes peace officers, firefighters, paramedics, EMTs, public safety dispatchers and safety telecommunicators, emergency response communication employees, rescue service personnel, and employees included in the definition of emergency responder in the regulations issued by the U.S. Department of Labor (“DOL”).

A “health care provider” encompasses individuals who provide emergency response services, including medical professionals, employees who are needed to keep hospitals and similar health care facilities supplied and operational, employees who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency, and employees included in the DOL’s regulations.

Are There Any Exemptions for Certain Types of Employers?  Yes, the ordinance does not apply to federal, state or local government agencies.  However, unlike the City ordinance, which exempted global parcel delivery services, employers with generous leave policies, new businesses, and closed business, the County ordinance does not provide for any other exemptions.

What About Collective Bargaining Agreements?  A collective bargaining agreement can waive the terms of the ordinance, provided the waiver is explicitly set forth in the agreement in clear and unambiguous terms.

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 also prohibits employers from discriminating or retaliating against employees for opposing any practice permitted under the ordinance, requesting to use or actually using supplemental paid sick leave, participating in proceedings related to the ordinance, or asserting or seeking to enforce rights under the ordinance.

The ordinance goes into effect immediately and will remain in effect until December 31, 2020 unless extended by the County.

As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 128

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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