City of Los Angeles Expands Paid Sick Leave for Large Employers

On April 7, 2020, Mayor Garcetti signed an emergency Supplemental Paid Sick Leave Order superseding a related ordinance previously adopted by the Los Angeles City Council. The Order requires employers with (i) 500 or more employees within the City of Los Angeles, or (ii) 2,000 or more employees in the United States to provide up to 80 hours of supplemental paid sick leave. Together with the Families First Coronavirus Response Act, which applies to employers with 500 or fewer employees, virtually all employers within the City must provide COVID-19 related paid sick leave.

The Los Angeles Office of Wage Standards (OWS) published regulations on April 11, 2020, implementing the Order and clarifying its requirements.

The Order took effect on April 7, 2020 and will continue until two weeks “after the expiration of the COVID-19 local emergency.”

Covered Employers/Eligible Employees

The OWS regulations clarify that the size of an employer’s business is determined by the average number of employees employed during the previous calendar year. Full and part-time, temporary, seasonal, and employees supplied through an employment agency are to be included in the calculation.

An employee is entitled to supplemental paid sick leave if the individual performs any work or telework within the geographic boundaries of the City of Los Angeles and has been employed with the same employer from February 3, 2020 through March 4, 2020.

Eligible employees may not waive any of the requirements under the Order.

The regulations also caution businesses utilizing independent contractors that workers are presumed to be employees in California and that California law will be applied to determine the classification of a worker.  

Permissible Uses

Under the Order, supplemental paid sick time can be used if the employee takes time off work (or telework) because:

1. The employee is infected with COVID-19 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 is at least 65 years old or has a specified health condition (e.g., heart disease, asthma, or diabetes);
   
3. The employee is caring for a family member who is not sick, but is isolating or under self-quarantine as required or recommended by a public health official or healthcare provider; or
   
4. The employee is caring for a family member whose senior care provider or child (under the age of 18) whose school or childcare provider temporarily ceases operations in response to a public health or other public official’s recommendation. Note, this provision only applies to an employee who is unable to secure a reasonable alternative caregiver.

Amount of Paid Sick Leave

Supplemental paid sick time for eligible full-time employees, defined as those who work at least 40 hours per week, is equivalent to 80 hours. A full-time employee’s rate of pay is calculated at the employee’s average two-week pay from February 3, 2020 through March 4, 2020.

Employees who work fewer than 40 hours per week will receive 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 regulations explain that the amount of leave is determined by adding the number of hours worked in four consecutive weeks during the February 3 to March 4 period and dividing the total by two.

Overtime premiums are not to be considered when calculating an employee’s average pay; however, the base rate before the premium for any overtime hours should be included in the calculation.

Supplemental paid sick leave shall not exceed $511 per day and $5,110 in the aggregate. Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

The regulations provide that supplemental paid sick time may be taken intermittently.

Employer Offset

The Order allows an offset for employers that voluntarily provided paid leave on or after March 4, 2020, for reasons (1) through (4) above (under “Permissible Uses”) or in response to an employee’s inability to work due to COVID-19. However, previously accrued hours (e.g., pre-existing vacation time or accrued paid sick leave) are explicitly excluded for offset purposes.

Exemptions

Employers exempt from the Order include the following:

• Emergency and health services personnel;

• Critical parcel delivery services;

• Employers that provide a minimum of 160 hours of paid leave annually (excluding paid holidays and paid bereavement leave) are exempt to the extent such “generous leave” has already been provided to an eligible employee;

• New businesses that opened in, or relocated to, the City between September 4, 2019 and March 4, 2020;

• Government agencies (however, government contractors are not exempt); and

• Any business or organization that was closed or has not operated for 14 or more days after March 4, 2020 due to COVID-19 or has provided at least 14 days of leave.

Recordkeeping

The regulations state that employers should retain documentation demonstrating compliance with the Order. Documentation should include the name of the employee requesting the leave, date(s) for which leave is requested, the reason or category for the leave, whether the request was approved, and if not, the reason for denial.

Additionally, the regulations direct employers to retain any documentation that substantiates a claimed exemption from the Order.

Restrictions and Enforcement

Under the Order, paid sick leave cannot be conditioned on an employee providing a doctor’s note or other documentation. Further, employers cannot inquire into or require employees to describe or explain the illness or condition necessitating leave. However, an employer may require an employee to provide a reason for taking leave for recordkeeping purposes.

Failure to comply with the Order can result in costly litigation, as the Order allows aggrieved employees to seek reinstatement, back pay, supplemental paid sick leave at the employee’s average rate of pay, and attorneys’ fees and costs.

Please reach out to a member of our Employment Practice Group if you have any questions and visit our COVID-19 Resource Page for more information on local and federal updates regarding COVID-19.

Nicholas Kanter and Chrystal Ferber are Employment Defense attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.