Locke Lord QuickStudy: UPDATE: Los Angeles City Council Passes COVID-19 Supplemental Paid Sick Leave Ordinance; Mayor’s Emergency Order Supersedes

On March 27, 2020, the Los Angeles City Council passed the emergency COVID-19 Supplemental Paid Sick Leave Ordinance (the “Ordinance”) requiring large employers (500+ employees) with employees working in the City of Los Angeles to provide up to 80 hours of Supplemental Paid Sick Leave for qualifying reasons related to the COVID-19 pandemic.

On April 7, 2020, Los Angeles Mayor Eric Garcetti signed the Ordinance, however, he also issued an Emergency Order (the “Emergency Order”) suspending the implementation of the Ordinance and replacing it with his modified plan for Supplemental Paid Sick Leave. Mayor Garcetti has urged the City Council to amend the Ordinance to conform to his Emergency Order. For an in-depth review of the Mayor’s Emergency Order, please click here.

Mayor Garcetti’s Emergency Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period. During this time, the City Council Ordinance will not be in effect and is superseded by the Mayor’s Emergency Order.

LA CITY COUNCIL’S MARCH 27, 2020, SUPPLEMENTAL PAID SICK LEAVE ORDINANCE

Covered Employers

The Ordinance applies to all employers who have 500 or more employees nationwide and at ‎least one employee performing some work in the City of Los Angeles.  ‎

The Ordinance is broadly worded and 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, all workers are ‎presumed to be employees and the burden falls on the employer to demonstrate that a worker is a ‎bona fide independent contractor and not an employee.  ‎

Eligible Employees ‎

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

Like the FFCRA, certain health care positions are exempted.  “First responders,” as defined in the ‎Ordinance, and “health care providers,” as defined in Section 12945.2 of the California ‎Government Code, are not eligible for Supplemental Paid Sick Leave.  Notably, these terms are ‎defined differently than the terms “health care provider” and “emergency responder” in the ‎FFCRA.  ‎
Per the Ordinance, a “first responder” is defined as an employee of a state or local public agency ‎who provides emergency response services, including a peace officer, firefighter, paramedic, ‎emergency medical technician, public safety dispatcher or safety telecommunicator, emergency ‎response communication employee, or rescue service personnel.  ‎

A “health care provider” is defined consistently with California Government Code Section 12945.2 ‎to include an individual 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 under the federal Family and Medical Leave Act (e.g., nurse ‎practitioners, dentists, and optometrists).  ‎

The Ordinance also contains a carve-out for employees subject to certain collective bargaining ‎agreements.  To be exempt, those agreements must contain an explicit, clear and unambiguous ‎waiver of the provisions of the Ordinance.   ‎

Qualifying Reasons for Leave

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

1. 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.‎

The qualifying reasons in the Ordinance are similar to the qualifying reasons for Emergency Paid ‎Sick Leave set forth in the FFCRA.  There are distinct differences, however, between the FFCRA ‎and the Ordinance, including both in the enumerated reasons as well as in the terminology and ‎definitions used.  For example, the Ordinance identifies that individuals who may face a greater ‎risk if exposed to COVID-19 may qualify for leave under the Ordinance, while a parallel provision ‎is not expressly contained in the FFCRA.  For a more in-depth review of the FFCRA, including ‎Emergency Paid Sick Leave, click here.‎

Additionally, because the Los Angeles City Council chose to use wording in the Ordinance that ‎differs from that in the FFCRA, it is unclear whether the qualifying reasons in the Ordinance will be ‎interpreted consistent with federal regulations and guidance interpreting similar provisions under the ‎FFCRA.‎

Moreover, the Ordinance has relaxed the requirement that an employee provide documentation ‎supporting his or her request for the leave.  To take Supplemental Paid Sick Leave under the ‎Ordinance, an employee need only make an “oral or written request.”  By contrast, employers ‎covered by the FFCRA are not required to provide leave unless an employee has provided ‎documentation sufficient for the employer to obtain a tax credit related to the leave request.  ‎

Amount of Leave Available

Eligible employees who work at least 40 hours per work or who are classified as full-time by an ‎employer are eligible for up to 80 hours of Supplemental Paid Sick Leave.  These employees are ‎entitled to paid leave based on 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 an amount no greater than the employee’s average two-week compensation during the ‎period of February 3, 2020, through March 4, 2020.‎

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 only eligible 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 Ordinance and the FFCRA, leave time taken under the ‎Ordinance 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, such 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 Ordinance, for requesting to use or ‎actually using Supplemental Paid Sick Leave, for participating in proceedings related to the ‎Ordinance, for seeking to enforce his or her rights under the Ordinance by any lawful means, or for ‎otherwise asserting rights under the Ordinance.  ‎

The Ordinance provides a private right of action to employees who claim a violation.  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.‎

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.