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Los Angeles Mayor Issues Executive Order Requiring Employers To Provide COVID-19 Supplemental Paid Sick Leave For Employees

4/14/20

By: Michelle Harrington

What Does The Executive Order Require: The COVID-19 crisis has employers scrambling to stay on top of legal obligations imposed by recent federal legislation, including the federal Families First Coronavirus Response Act and the CARES Act, and various state law initiatives aimed at providing leave or unemployment benefits to employees affected by COVID-19.   Now, Los Angeles has entered the mix and, effective April 7, 2020, employers that have either 500 or more employees in the City or 2,000 or more employees nationally must provide supplemental paid sick leave of up to two weeks (80 hours) for COVID-19 related reasons to employees living within the City of Los Angeles.  The paid sick leave required to be provided under this Order is in addition to the paid sick leave employers are currently obligated to provide under California’s Healthy Workplaces Healthy Families Act and the Los Angeles paid sick leave ordinance. 

The complete supplemental paid sick leave Order may be viewed here, and sets forth the following:

Employees Covered by the Order: All Employees who have been employed by the same employer from February 3, 2020 through March 4, 2020 who have performed work within the geographic boundaries of the City of Los Angeles are entitled to supplemental paid sick leave. 

Employers Covered by the Order: An employer is a person (as defined 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 a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee.  The Order applies to Employers that have either 500 or more employees in the City of Los Angeles or 2,000 or more employees within the United States.

Supplemental Paid Sick Leave Employers Must Provide: An employee who works at least 40 hours a week or is classified as full-time by the employer is entitled to 80 hours of supplemental paid sick leave.  This leave is calculated based upon an employee’s average two-week pay over the period of February 3, 2020 through March 4, 2020.  Employees who work less than forty hours per week and are not classified as full-time are entitled to 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.

Maximum Compensation Employers Must Pay for Leave: The supplemental paid sick leave amount paid to an employee shall not exceed $511 per day and $5,110 in the aggregate.

Qualifying Reasons for Supplemental Paid Sick Leave: Employees are entitled to take supplemental paid sick leave if they are unable to work or telework for any of the following reasons:

1. the employee takes time off due to COVID-19 infection or because a public official or healthcare provider requires or recommends the employee self-isolate or quarantine to prevent the spread of COVID-19;
2. the employee takes time off work because the employee is 65 years old or older or has a health condition such as heart, lung or kidney disease, asthma, diabetes or a weakened immune system;
3. the employee takes time off 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 to provide care for a family member who requires care due to the temporary closure of a senior care facility, school or child care provider caring for a child under the age of 18 where such employee is unable to secure a reasonable alternative caregiver.

Employers May Not Require Doctor’s Note as Condition of Leave: An employer may not require a doctor’s note or other documentation for the use of supplemental paid sick leave.  The employee can request the leave verbally or in writing. 

Offset for Prior Allowance of Paid Sick Leave: The obligation to provide 80 hours of supplemental paid sick leave under the Order can be reduced for every hour that the employer allowed an employee to take other paid leave in an amount equal to or greater than such 80 hour requirement (not including previously accrued hours) on or after March 4, 2020 for any of the reasons listed in 1-4, above or in response to an employee’s inability to work due to COVID-19.

Exemptions for Certain Employers: The following employers are exempt from providing supplemental paid sick leave:

1. Employers of Emergency and Health Services Personnel.  Employers of an employee who is either Emergency Personnel or a health care worker.  Emergency Personnel refers to individuals specified in the April 1, 2020 City of Los Angeles Safer at Home emergency order Paragraph 5(vi), including 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.  A health care worker includes those individuals described in California Government Code Section 12945.2(c)(6) or individuals, including contract workers, working at a health facility licensed under California Health and Safety Code Section 1250;
2. Employers of Critical Parcel Delivery.  Employers that provide global parcel delivery services;
3. Employers with Generous Leave.  Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually do not have to provide supplemental paid leave to any employee that received the more generous leave;
4. Employers of New Businesses.  Employers that started businesses in the City of Los Angeles on or after September 4, 2019 through March 4, 2020 (not including construction businesses as defined by Los Angeles Municipal Code (“LAMC”) section 21.30 b.1 or film producers as defined by LAMC 21.109).  To qualify, an employer could not have been in business in the City of Los Angeles in the 2018 tax year;
5. Government Employers.  Government agencies; or
6. Employers of Closed Businesses and Organizations.  Employers 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 or provided at least 14 days of leave.

Employee Enforcement of Order: The Order allows an employee who claims a violation of the Order to bring a civil action in the Superior Court of California.  The employee can seek civil remedies, including reinstatement, back pay, supplemental paid sick leave at the rate of the employee’s average rate of pay, other legal or equitable relief, and reasonable attorney’s fees and costs of suit.

Retaliation and Discrimination Prohibited: The Order prohibits retaliating or discriminating against an employee for opposing any practice proscribed 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 the employee’s rights under the Order by lawful means, or otherwise asserting rights under the Order. 

No Waiver of Employee Rights Under the Order: Any waiver by an employee of any or all of the provision of the Order shall be deemed contrary to public policy and void and unenforceable.

Relationship to Other State and Federal Laws: With the exception of rights and remedies provided to employees under the FFCRA, the Order provides rights and remedies in addition to or independent of any other rights, remedies or procedures available under any other laws and do not diminish, alter, or negate any other legal rights, remedies, or procedures available to an employee. Nothing in the Order should be interpreted or applied to create any power or duty in conflict with any federal or state law. 

Impact of Collective Bargaining Agreements: The terms of a collective bargaining agreement in effect on April 7, 2020 supersede the Order if such agreement contains COVID-19 related sick leave provisions.  A collective bargaining agreement that expires or becomes open for renegotiation may expressly waive the provisions of the Order.  If an agreement is in place on April 7, 2020 but does not address COVID-19 related sick leave provisions, the employer must comply with the Order until the agreement is amended to expressly waive the provisions of the Order. 

Duration of Supplemental Paid Sick Leave: The Order is in effect from April 7, 2020 up until two weeks after the COVID-19 local emergency period ends.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at coronavirustaskforce@fmglaw.com.

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