Updated: The City of Los Angeles Mandates COVID-19 Supplemental Paid Sick Leave For Employers with 500 or More Employees Within Los Angeles or 2,000 or More Employees Within the United States

April 16, 2020
April 16, 2020 Update.  On April 11, 2020, the Los Angeles Office of Wage Standards published Rules and Regulations implementing Mayor Garcetti’s Emergency Order to provide supplemental paid sick leave to workers affected by COVID-19.  These Rules and Regulations provide further guidance to help employers and employees understand their responsibilities and rights under the Emergency Order.  This new guidance has been incorporated into this updated post. 
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On April 7, 2020, Los Angeles Mayor Eric Garcetti signed an Emergency Order to provide supplemental paid sick leave to workers affected by COVID-19 (the “Order”), which applies to employers that are not covered by the Families First Coronavirus Response Act (the “FFCRA”).  The law goes into effect immediately.  It will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.
  • Covered Employees.  Under the Order, an employee who has been employed with the same Covered Employer from February 3, 2020 through March 4, 2020, is entitled to supplemental paid sick leave.  The Order defines “employee” broadly to include any individual who performs any work within the geographic boundaries of the City of Los Angeles (the “City”) for an employer.  This includes (i) an employee whose employer is based outside of the City but who performs work inside the geographic boundaries of the City, (ii) an employee who is teleworking inside the City, even if their employer is based outside of the City or the employee’s regular workplace is outside the City and (iii) an employee who normally works from a location inside the City but is teleworking from a location outside the City.  Under the Order, there is a presumption that a worker is an employee, and an employer has the burden to demonstrate that a worker is instead an independent contractor.
  • Covered Employers.  An employer is a person, 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.  The Order applies to employers that have either 500 or more employees within the City of Los Angeles or 2,000 or more employees within the United States.
     
  • Number of Employees. The size of an employer’s business is calculated by taking the average number of employees employed during the previous calendar year, including, but not limited to, full-time employees, part-time employees, temporary or seasonal employees, and workers supplied through a temporary employment agency.  A worker that worked in multiple locations is counted as an employee within the City of Los Angeles if they performed any work within the City’s geographic boundaries in the previous calendar year.
  • Amount of Supplemental Paid Sick Leave.  If an employee is unable to work or telework, the employee is entitled to leave as follows:
(1) An employee who works at least 40 hours per week or is classified as a full-time employee is entitled to 80 hours of supplemental paid sick leave.  Supplemental paid sick leave is calculated based on the employee’s average two-week pay over the period of February 3, 2020 through March 4, 2020.
(2) An employee who works less than 40 hours per week and is not classified as a full-time employee is 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.The amount of supplemental paid sick leave hours is determined by adding the number of hours worked in four consecutive weeks during this period, and dividing that total by 2.
(3) Overtime premiums are not to be considered when calculating an employee’s average two-week pay; however, the base rate before the premium for any overtime hours should be included in the calculation.
(4) An employee may choose to use the supplemental paid sick leave time periodically, rather than consecutively.This may be allowed until the supplemental paid sick leave limit is met.
  • Cap on Amount of Leave.  Under the Order, the amount of supplemental paid sick leave paid to an employee may not exceed $511 per day and $5,110 in the aggregate.  Employees of joint employers are also entitled only to the total aggregate amount of leave specified for employees of one employer.
  • Qualifying Reasons for Supplemental Paid Sick Leave.  The Order mandates that an employer provide supplemental paid sick leave upon the oral or written request of an employee if the employee is unable to work or telework for any of the following reasons:
(1) The employee is infected with COVID-19 or a public health official or healthcare provider requires or recommends that 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 a weakened immune system;
(3) 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 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 applicable only to an employee who is unable to secure a reasonable alternative caregiver.
  • Proof.  An employer may not require a doctor’s note or other documentation for the use of supplemental sick leave, or inquire into or require an employee to provide a description of the illness or conditions necessitating the employee’s leave.  An employer may, however, require an employee to provide, verbally or in writing, the reason for taking leave (e.g., child care or quarantine) for the employer’s recordkeeping.  The employer’s policy should not have the effect of deterring an employee from taking legitimate supplemental paid sick leave. 
     
  • Employer Recordkeeping.  In addition to records required by applicable local, state or federal laws, an employer should retain documentation of compliance with the Order.  Such documentation should include:
(1) The name of the employee requesting the leave;
(2) The date(s) for which leave is requested;
(3) The category or reason for the leave;
(4) Whether or not the leave was approved, and if not, the reason for denial; and
(5) Any documentation necessary to substantiate any applicable exemption.
  • Employer Offset.  Under the Order, an employer’s obligation to provide 80 hours of supplemental paid sick leave is reduced for every hour the employer allowed an employee to take paid leave in an amount equal to or greater than the requirements set forth in the Order, not including previously accrued hours, on or after March 4, 2020, for any of the qualifying reasons listed above or in response to an employee’s inability to work due to COVID-19.
  • Exemptions.  The following employers and employees are exempt from the Order:
(1) Emergency and health services personnel;
(2) Employees that provide critical parcel delivery;
(3) Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually;
(4) New businesses, other than construction businesses or film producers as defined by statute, that (i) were not in business in the City in 2018 and (ii) started in the City or relocated to the City on or after September 4, 2019 through March 4, 2020;
(5) Government employees; and
(6) 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 pandemic or that provided at least 14 days of leave.
  • Retaliatory Action Prohibited.  An employer may not discharge, reduce in compensation or otherwise discriminate against any 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 his or her rights under the Order by any lawful means, or for otherwise asserting rights under the Order.  Additional forms of retaliation may include, but are not limited to, a reduction in hours, demotion, reassignment to a less desirable assignment, location or schedule, or the denial or reduction of other benefits.
  • Interaction with Other Available Relief.  The Order provides that, with the exception of rights and remedies provided to employees pursuant to the FFCRA, the provisions of the Order are in addition to or independent of any other rights, remedies, or procedures available under any other law and do not diminish, alter, or negate any other legal rights, remedies, or procedures available to an employee.
     
  • Expiration. The Order is in effect until two calendar weeks after the local state of emergency for COVID-19 is lifted.
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements.  For more information, please visit S&C’s page regarding Coronavirus updates.

Wages and Overtime