Locke Lord QuickStudy: Los Angeles Mayor Eric Garcetti Issues Emergency Order Mandating COVID-19 Supplemental Paid Sick Leave and Suspending City Council Supplemental Sick Leave Ordinance

On April 7, 2020, Los Angeles Mayor Eric Garcetti issued an Emergency Order (the “Order”) that requires companies employing 500 or more employees within the City of Los Angeles or 2000 or more employees nationally to provide up to 80 hours of Supplemental Paid Sick Leave for qualifying reasons related to the COVID-19 pandemic. 

Mayor Garcetti’s Order suspended a similar Ordinance that the Los Angeles City Council passed on March 27, 2020, and that would have gone into effect on April 10, 2020.  That Ordinance,  No. 186590 (the “Ordinance”), is replaced and superseded by the Mayor’s Emergency Order until two calendar weeks after the expiration of the COVID-19 local emergency period.  Mayor Garcetti urged the City Council to amend the Ordinance to conform to his Order.  Among other things, the Ordinance does not provide as many exemptions for employers as Mayor Garcetti’s Order and arguably would have required a greater number of employers to provide supplemental paid leave.  Additional information regarding the now-suspended Ordinance can be found here.  

MAYOR GARCETTI’S APRIL 7, 2020, EMERGENCY ORDER

The Order extends paid sick leave benefits to Los Angeles workers whose employers are too large to be covered by the Families First Coronavirus Response Act (“FFCRA”). The FFCRA generally covers employers with fewer than 500 employees. Unlike the FFCRA, however, employers covered by this Order do not receive a tax credit covering the cost of the paid leave.

Covered Employers

The Order applies to all employers that have 500 or more employees within the City of Los Angeles or 2,000 or more employees within the United States and at least one person working in the City.

The Order broadly applies to all persons, associations, organizations, partnerships, business trusts, limited liability companies or corporations, or corporate officers or executives, who directly or indirectly, or through an agent or any other individual or entity, 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 an individual who performs any work within the geographic boundaries of the City of Los Angeles. 

Moreover, the Order broadly defines employee as “an individual who performs any work within the geographic boundaries of the City for an employer.”  Notably, the Mayor’s Order does not address whether an employer bears the burden of demonstrating a worker is an independent contractor rather than an employee, as the City Council’s Ordinance did. 

Eligible Employees

With certain notable exceptions discussed below, all individuals who perform work within the geographic boundaries of the City of Los Angeles are eligible for leave if they are currently employed and were continuously employed by the same employer from February 3, 2020, to March 4, 2020.

The Order exempts the following types of employers:

• Employers of a worker who is either “Emergency Personnel” or a “Health Care Worker”.

“Emergency Personnel” include all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel, and related contractors and other who work for emergency services.

“Health Care Workers” include 

(a) all individuals, including contract workers, working at a health facility licensed under California Health and Safety Code section 1250, and 

(b) all individuals described in California Government Code Section 12945.2(c)(6), including individuals holding a California physician’s and surgeon’s certificate; a California osteopathic physician’s and surgeon’s certificate; an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction who directly treats or supervises the treatment of a serious health condition; or other individuals determined capable of providing health care services in Los Angeles under the federal Family and Medical Leave Act (e.g., nurse practitioners, dentists, and optometrists)

• Employers of Critical Parcel Delivery Workers: those who provide global parcel delivery services.  
• Employers that Provide “Generous Leave”:  employees who receive benefits as a result of “a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.” 
• New Businesses: a “new businesses that started in the City [of Los Angeles] or businesses that relocated [there] from outside the City on or after September 4, 2019 through March 4, 2020” is exempt. In order to qualify for this exemption, a business must not have been in business in the City of Los Angeles during the 2018 tax year. This exemption does not apply to construction businesses and film producers as defined respectively in Section 21.30 b.1 and 21.109 of the Los Angeles Municipal Code.
• Government Agencies: employees of government agencies working within the course and scope of their public service employment are exempt.
• Closed Businesses and Organizations: businesses and organizations “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”.  

Collective Bargaining Agreements 

The Order also carves out employers subject to certain collective bargaining agreements (“CBAs”).  A CBA in place on April 7, 2020, supersedes the Order if it contains COVID-19 related sick leave provisions.  When the CBA expires or is otherwise open for renegotiation, the provisions of the Order may be expressly waived only if the waiver set forth in the agreement is clear and unambiguous. 

If a CBA does not include a COVID-19 sick leave provision, the employer is required to comply with the Order unless and until the CBA is amended to expressly waive the Order.

Qualifying Reasons for Leave
A covered employer is required to provide Supplemental Paid Sick Leave to an employee upon an oral or written request for time off for any of the following reasons:

1. The employee is infected with 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 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 for whom 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 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. This provision only applies to employees unable to secure a reasonable alternative caregiver.

The qualifying reasons in the Order are similar to the qualifications for Emergency Paid Sick Leave set forth in the FFCRA. There are distinct differences, however, between the FFCRA and the Order, including both in the qualified reasons for leave as well as in its terminology and definitions. For example, the Order provides that individuals who may face a greater risk if exposed to COVID-19 may qualify for leave, while a parallel provision does not appear in the FFCRA. For a more in-depth review of the FFCRA, including Emergency Paid Sick Leave, click here.

Additionally, because Mayor Garcetti chose to word the Order differently from  the FFCRA, it is unclear whether the qualifying reasons in the Order will be interpreted consistent with federal regulations and guidance interpreting the FFCRA.

Moreover, the Order relaxed the requirement that an employee provide documentation supporting his or her leave request. To take Supplemental Paid Sick Leave under the Order, an employee need only make an “oral or written request.” 

Amount of Leave Available

Eligible employees who work at least 40 hours per work or who are classified as full-time by their employers are eligible for up to 80 hours of Supplemental Paid Sick Leave. The calculation of benefits for these employees is based upon the employee’s average two-week pay during the period of February 3, 2020, through March 4, 2020.

Employees who work less than 40 hours per week and who are not classified as full-time are entitled to receive an amount no greater than the employee’s average two-week compensation during the same period.

In either case, the amount of Supplemental Paid Sick Leave is capped at $511 per day and $5,110 in the aggregate. Moreover, employees of joint employers are eligible only to receive Supplemental Paid Sick Leave from one employer.

Supplemental Paid Sick Leave does not diminish or negate any other legal rights, remedies, or procedures available to any employee. Thus, covered employers should be cognizant of other sick leave, paid time off, or other obligations with respect to their employees. However, in the event that an employer is subject to both the Order and the FFCRA, leave time taken under the Order and FFCRA may run concurrently depending on the qualifying reason. 

Furthermore, if an employee has already received paid leave since March 4, 2020 for qualifying reasons related to the COVID-19 pandemic that time may be offset against the 80-hour requirement.

Penalties for Noncompliance

Employers are prohibited from discharging, reducing compensation, or otherwise discriminating against an employee for opposing any practice prohibited by the Order, for requesting to use or actually using Supplemental Paid Sick Leave, for participating in proceedings related to the

Order, for seeking to enforce his or her rights under the Order by any lawful means, or for otherwise asserting rights under the Order.
The Order provides a private right of action to employees. If successful, employees are entitled to (1) reinstatement; (2) back pay and Supplemental Paid Sick Leave unlawfully withheld; and (3) other legal or equitable relief deemed appropriate by a court. Moreover, prevailing employees are entitled to recover reasonable attorneys’ fees and costs.

The Office of Wage Standards of the Bureau of Contract Administration will promulgate the rule and regulations consistent with the Order.

NOTE: Because of the ever-changing COVID-19 legal environment, employers should consult with counsel for the latest developments and updated guidance on these topics.

Please visit our COVID-19 Resource Center often for up-to-date information to help stay informed of the legal issues related to COVID-19.