Large employers will have to provide COVID-19 leave.
On March 27, the Los Angeles City Council passed a paid sick leave ordinance to require that large employers provide additional paid sick leave for reasons related to the COVID-19 pandemic.
The City Council aimed its effort at closing the gap created by the federal Families First Coronavirus Response Act, which applies only to employers with fewer than 500 employees. The LA ordinance applies to employers with "500 or more employees nationally." But that language could have the unintended effect of placing at risk businesses who have small workforces in the City of Los Angeles and the majority of their employees elsewhere. Thus, late yesterday, April 7, Mayor Eric Garcetti issued an Emergency Public Order amending the ordinance to cover employers with 500 or more employees in the City of Los Angeles, or 2,000 or more employees nationally.
The ordinance, as amended, went into effect immediately and will expire two weeks after the expiration of the COVID-19 local emergency period.
The ordinance, as amended, exempts certain employers or businesses, specifically including the following:
- Emergency and health services personnel. Employers of emergency personnel and health care workers, including first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement, doctors, dentists, clinical psychologists, optometrists, chiropractors, clinical social workers, nurse practitioners, nurse midwives, physician assistants, and any individuals, including contract workers, who work at a health facility licensed under California Health & Safety Code § 1250. Licensed health facilities include hospitals, nursing facilities, hospice facilities, and correctional treatment centers.
- Critical parcel delivery. Employers of employees who provide global parcel delivery services.
- Employers already offering generous leave. Employers with paid leave or PTO policies that provide a minimum of 160 hours of paid leave annually.
- New business. New businesses, but not construction businesses or film producers, that started in the City of Los Angeles or relocated from outside the City between September 4, 2019, and March 4, 2020, and were not in business in the City in the 2018 tax year.
- Government. Employees of government agencies working within the course and scope of their public service employment.
- Closed businesses and organizations. Businesses or organizations that were closed or non-operational for at least 14 days due to a city official’s emergency order because of the COVID-19 pandemic or that provided at least 14 days of leave.
- Employers subject to some collective bargaining agreements. Employers with collective bargaining agreements in place on April 7, 2020, that contain sick leave provisions related to COVID-19. If a CBA expires, is up for renegotiation, or is otherwise silent on COVID-19-related sick leave, then employers must comply with the ordinance unless the CBA expressly waives the supplemental paid sick leave ordinance in clear and unambiguous terms.
Covered employees and calculation of hours and pay
If employees are unable to work or telework, they are entitled to supplemental paid sick leave if they have been employed with the same employer from February 3 through March 4, 2020, and performed any work within the geographic boundaries of the City of Los Angeles. An employee who works full-time or at least 40 hours per week is entitled to 80 hours of supplemental paid sick leave, calculated based on that employee’s average two-week pay between February 3 and March 4, 2020. An employee who works part-time or less than 40 hours per week is entitled to supplemental paid sick leave in an amount no greater than that employee’s average two-week pay between February 3 and March 4, 2020.
Like the FFCRA, the supplemental paid sick leave is capped at $511 per day and $5,110 total. If an employer provided an employee with paid leave, not including previously accrued hours, in an amount equal to or greater than these requirements on or after March 4, 2020, in response to the employee’s inability to work due to COVID-19, then those hours may offset the employer’s obligation to provide supplemental paid sick leave under the ordinance.
Under the amended ordinance, questions remain about some coverage issues:
- Status of independent contractors. The original version of the ordinance expressly stated that there is a presumption that a worker is an employee, and an employer must rebut this presumption in order to show that the worker is an independent contractor. However, the amendment omits this language and is otherwise silent on independent contractors, making it unclear whether the presumption of employee status remains and whether independent contractors should be counted to determine whether the covered employer threshold is met.
- Employer outside LA, work in LA. What if the employer is located outside the City of Los Angeles, but an employee is temporarily working from home and lives in the City? Or what if the employer and employee are outside the City but the employee makes deliveries within the City? If the employer is covered and no exemption applies, the employees in these scenarios are likely to be covered because they are performing work within the geographic boundaries of the City.
Use of supplemental paid sick leave
Employers must provide supplemental paid sick leave upon an employee’s oral or written request (and may not require a doctor’s note or other documentation) for the following reasons:
- The employee is infected with COVID-19.
- A public health official or health care provider requires or recommends that the employee isolate or self-quarantine to prevent the spread of COVID-19.
- The employee is at least 65 years old or has an underlying health condition, including but not limited to heart disease, asthma, lung disease, kidney disease, or a weakened immune system.
- 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.
- The employee is unable to secure a reasonable alternate caregiver and needs to provide care for a family member whose senior care provider temporarily ceases operations in response to a public health or other public official’s recommendation.
- The employee is unable to secure a reasonable alternate caregiver and needs to provide care for a family member whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to the recommendation of a public health or other public official.
Enforcement, no retaliation
The ordinance prohibits employers from taking retaliatory actions against employees who request or take supplemental paid sick leave. In addition, employees may bring actions for non-compliance in a California Superior Court and obtain legal and equitable relief, including reinstatement, back pay, and the unlawfully withheld supplemental paid sick leave, calculated at the employee’s average rate of pay. Prevailing employees may also recover their costs and reasonable attorneys' fees.
Image Credits: From flickr, Creative Commons license. City of Los Angeles by Ron Reiring; coronavirus by Ministerio de Ciencia, Tecnologia, Inovacoes e Comunicacoes.
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