As we reported previously, on March 27, 2020, the Los Angeles City Council passed an ordinance requiring large employers to provide emergency supplemental paid sick leave to employees affected by COVID-19 who work in the city limits. The ordinance was set to take effect upon signing by Mayor Eric Garcetti as emergency legislation.

However, last night, Mayor Garcetti returned the ordinance to the City Council unsigned, instead issuing a Public Order requiring paid sick leave under his emergency authority. Mayor Garcetti applauded the City Council for passing a supplemental paid sick leave ordinance, but found that the ordinance as drafted needed modification to strike a better balance between helping workers who will likely suffer through layoffs if the City imposes excessive burdens and costs upon businesses, and ensuring that City regulations do not unintentionally cause staffing shortages at hospitals and critical health facilities during the pandemic. The Mayor’s Public Order supersedes the March 27 City Council ordinance, and will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

The Public Order is available here, and we have summarized its key provisions below. It creates new exemptions for employers with more generous leave programs, and gives credit for paid leave during closures.

Covered Employers, Employees and Required Leave

The Public Order applies to employers with (i) 500 or more employees within the City of Los Angeles or (ii) 2,000 or more employees within the United States.  Employers who do not meet these criteria are not required to provide sick leave – a change from the City Council ordinance that would have applied to employers with 500 or more employees anywhere in the U.S.

An “employee” is an individual who performs any work within the geographic boundaries of the City of Los Angeles for a covered employer.  An “employer” is a person specified in Section 18 of the California Labor Code, including a corporate officer or executive, who directly or through an agent or any other person, 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 any employee.

A covered employee who works at least 40 hours per week or is classified as full-time by the employer will receive 80 hours of Supplemental Paid Sick Leave, paid based on the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.

An employee who works less than 40 hours per week and is not classified as full-time will receive Supplemental Paid Sick Leave in an amount no greater than the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.

Reasons Employees Can Request Supplemental Paid Sick Leave

An employer is required to provide Supplemental Paid Sick Leave upon the oral or written request of an employee if:

1. The employee takes time off due to COVID-19 infection or because 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 takes time off because 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 takes time off because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
4. The employee takes time off because the employee needs to provide care for a family member whose senior care provider or whose school or child care 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 is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

An employer may not require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.

Pay Cap

Similar to the pay cap under the Families First Coronavirus Response Act (“FFCRA”) for employees taking sick leave to quarantine pursuant to an order related to COVID-19, to self-quarantine due to COVID-19, or to seek a diagnosis for symptoms of COVID-19, the supplemental paid sick leave is capped at $511 per day and $5,110 in the aggregate.  However, there is no tax credit available to employers who pay Supplemental Paid Sick Leave.  Employees of joint employers are only entitled to the total aggregate amount of leave as if they were the employee of one employer. In other words, they are not entitled to twice the amount of sick leave by virtue of having two employers.

Offset for Employer Leave Already Provided

An employer’s obligation to provide 80 hours of Supplemental Paid Sick Leave will be reduced hour-for-hour by the number of hours the employer allowed an employee to take paid leave (not including previously accrued hours) on or after March 4, 2020 for any of four reasons the employee can take Supplemental Paid Sick Leave under the Public Order, above, or in response to an employee’s inability to work due to COVID-19.  This expands the offset originally contemplated by the ordinance.

Exemptions

Certain employees are exempt from the Order, including emergency and health services personnel; critical (i.e. global) parcel delivery; employees of government agencies; and employees of businesses or organizations that were 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 that provided at least 14 days of leave to employees.

New businesses that started in the City or businesses that relocated from outside the City on or after September 4, 2019 through March 4, 2020 are exempted, as long as the employer was not in business in the City in the 2018 tax year, is not a construction business as defined in Section 21.30 b.1 of the Los Angeles Municipal Code, and is not a film producer as defined in Section 21.109 of the Los Angeles Municipal Code.

In another important change from the ordinance, if an employer has a generous paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually to employees, the employer is exempt from any obligation to provide supplemental leave pursuant to the Order for employees that received the more generous paid leave.

Collective Bargaining Agreements

A collective bargaining agreement (CBA) in place on the effective date of the Order can supersede the provisions of the Order if the CBA contains COVID-19 related sick leave provisions. When the CBA expires or is otherwise open for renegotiation, the provisions of the Order may only be expressly waived if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. If a CBA is in place on the effective date of the Order but the agreement does not address COVID-19 related sick leave provisions, the employer is required to comply with the Order unless and until the CBA is amended to expressly waive, in clear and unambiguous terms, that the provisions of the Order do not apply.

Employee Rights, Prohibition on Retaliation, and Enforcement

With the exception of rights and remedies provided to employees pursuant to the FFCRA, the provisions of the Order are in addition to, independent of, and do not diminish any other rights, remedies, or procedures available to employees under law.  The Order prohibits retaliation against employees for requesting or using Supplemental Paid Sick Leave, for participating in proceedings related to the Order, or for lawfully asserting or seeking to enforce their rights under the Order. In addition, in the event an employee claims a violation of the Order, the Order provides for reinstatement, back pay and pay of Supplemental Paid Sick Leave, as well as other available equitable and legal relief, and reasonable attorneys’ fees and costs if the employee is the prevailing party.

Rules and Regulations

The Order requires the Office of Wage Standards (OWS) of the Bureau of Contract Administration will promulgate Rules and Regulations consistent with the Order, which will be posted on WagesLA.lacity.org.