On April 7, 2020, Mayor Eric Garcetti issued an emergency order providing supplemental paid sick leave to certain employees working within the City of Los Angeles for a variety of reasons related to COVID-19 (the “Order”). Notably, Mayor Garcetti issued the Order after declining to sign the COVID-19 Supplemental Paid Sick Leave Ordinance (the “Ordinance”) approved by the Los Angeles City Council (“City Council”) on March 27. Our previous post summarizing the City Council’s Ordinance is located here: https://blogs.orrick.com/employment/.
Although it achieves a similar goal, the Order is materially different from the City Council’s Ordinance. Below are some of the key aspects of the Order, which went into effect on April 7, 2020.
Employees who (i) have been employed by the same employer from February 3, 2020 through March 4, 2020, and (ii) perform any work within the geographic boundaries of the City of Los Angeles are eligible to use supplemental paid sick leave under the Order.
The Order applies to employers with either (i) 500 or more employees within the City of Los Angeles, or (ii) 2,000 or more employees within the United States.
Amount of Supplemental Paid Sick Leave
Supplemental paid sick leave must be provided to eligible employees at the following rates, with a cap of $511 per day and $5,110 in total:
- Full-time employees: 80 hours of supplemental paid sick leave, calculated based on the employee’s average two-week pay from February 3 – March 4, 2020;
- Part-time employees: Supplemental paid sick leave in “an amount no greater than the employee’s average two-week pay” from February 3 – March 4, 2020.
Supplemental paid sick leave under the Order must be provided in addition to any sick leave mandated by existing California and Los Angeles leave laws, but not in addition to sick leave required by the Families First Coronavirus Response Act (FCCRA).
Importantly, an employer that has already provided paid leave since March 4, 2020 for COVID-19-related purposes may offset the previously provided paid leave against the 80 hours required by the Order. For example, a full-time employee, who has used 10 hours of paid leave since March 4, 2020 for a COVID-19 related reason is only required to receive 70 hours of supplemental paid sick leave under the Order (as opposed to 80).
Permissible Reasons for Using Supplemental Paid Sick Leave
An employee who is unable to work or telework may use supplemental paid sick leave for the following reasons:
- The employee takes time off due to a COVID-19 infection or a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine;
- The employee is at least 65 years old or has a health condition such as asthma, heart, lung or kidney disease, diabetes or weakened immune system;
- The employee needs to care for a family member who is not sick but has been recommended to isolate or self-quarantine;
- The employee needs to provide care for a family member whose senior care provider, childcare provider or school (children under 18) ceases operations in response to a public health recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.
Employees may make an oral or written request for supplemental paid sick leave and are not required to submit documentation to the employer in support of the request.
Notably, the Order includes several exemptions that did not appear in the City Council’s Ordinance. Specifically, the following categories of employers are not covered by the Order:
- Employers of Emergency Personnel and Health Care Workers. The Order exempts employers of individuals classified as “Emergency Personnel” or health care workers. Emergency Personnel includes all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel and related contractors and others working for emergency services providers. Health care workers include individuals working at a health facility licensed under the California Health & Safety Code.
- Global Parcel Delivery. The Order exempts employers who provide global parcel delivery services.
- Employers That Already Provide 160 Hours of PTO/Paid Leave. Employers that already provide a minimum of 160 hours of paid leave or paid time off on an annual basis are not required to provide supplemental paid sick leave pursuant to the Order.
- “New Businesses” in Los Angeles. The Order exempts businesses that either started in or relocated to the City of Los Angeles (from outside Los Angeles) any time between September 4, 2019, through March 4, 2020. To qualify for this exemption, the employer must not have been in business in Los Angeles during the 2018 tax year. Further, construction businesses and film producers are excluded from qualifying for this exemption.
- Government Agencies. The Order does not apply to government agencies.
- Closed Businesses and Organizations. The Order exempts any business that (i) was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of COVID-19, or (ii) provided employees with at least 14 days of leave.
Additionally, the Order permits a collective bargaining agreement to expressly waive the right of employees to utilize the benefits provided by the Order. However, any collective bargaining agreement in place as of April 7, 2020 that does not address COVID-19 related sick leave must comply with the Order until the collective bargaining agreement is amended to expressly include a waiver.
The Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period. The Order doesn’t provide any specific criteria to help determine when the COVID-19 local emergency period has expired.
The Order establishes the Office of Wage Standards (OWS) of the Bureau of Contract Administration as the agency responsible for promulgating Rules and Regulations that employers may rely on to comply with the Order. As stated in the Order, the OWS will post the Rules and Regulations to WagesLA.lacity.org.
We will continue to monitor any further developments and provide an update once additional guidance on the Order has been issued. Please check Orrick’s COVID-19 resource center for the latest updates.