City of Los Angeles Mandates Paid Leave for COVID-19 Vaccine Purposes

On June 24, 2021, the City of Los Angeles issued an emergency order requiring all employers to provide COVID-19 vaccine related leave to employees who work within the City of Los Angeles. The leave includes the travel time to/from vaccine appointment, time spent receiving the injection, and any recovery needed due to vaccine side effects that prevent an employee from working or teleworking.

The order applies retroactively to January 1, 2021 and is set to expire on September 30, 2021.

• Covered employees: An individual who performs any work within the geographic boundaries of the City of Los Angeles for an employer and who has been employed with the same employer for 60 days. 

• Retroactive application and reinstatement of previously used leave: Employees who took COVID-19 vaccine related leave between January 1, 2021 and June 24, 2021, and the amount paid for leave was less than the amount required in the order (see below), may request retroactive payment. Additionally, employees who used other category of leave (e.g., paid sick leave, vacation, etc.) for previous COVID-19 vaccine leave and request retroactive application of the order, are entitled to reinstatement of the previously taken leave. Any restored balance, as well as remaining hours of COVID-19 vaccine related leave, should be reflected on employees’ wage statements. 

• Amount of leave: Employees who work for larger employers (+26 employees) are eligible for vaccine leave only after they exhausted all available supplemental paid sick leave benefits (Labor Code Sec. 248.2) (“SPSL”).

*The prorated amount is based on the average number of hours worked in the 60 days preceding the injection. Example: A part-time employee worked 240 hours in the last 60 days (including non-working days):

– 240 hours divided by 60 days = average of 4 hours per day
– Average of 4 hours per day x 7 days = average of 28 hours per week
– 28 hours (part time hours)/ 40 hours (full time) = 0.7
– 0.7 x 4 hours for injection = employee is eligible for 2.8 hours (2 hours 48 minutes) per vaccine injection
– 0.7 x 8 hours for recovery = employee is eligible for 5.6 hours (5 hours 36 minutes) for vaccine recovery

• Rate and cap: For non-exempt employees, rate of pay for leave is the highest of: (1) employee’s normal rate of pay (for the workweek in which leave was taken); (2) $15.00/hour (city’s minimum wage); or (3) employee’s average hourly rate for the preceding 60 days (not including overtime). Exempt employees shall be compensated in the same manner as the employer calculates wages for other forms of paid leave time. Any amount paid for COVID-19 vaccine leave, is capped at $511 per day (or $255.50 per each 4 hours), or $1,022 in the aggregate. This may change if federal legislation permits higher caps.

• Credit for previous leave: The order clarifies that if an employer previously granted paid leave for COVID-19 vaccine purposes, in addition to any leave benefits an employee was entitled to (e.g., SPSL), that additional leave may be counted towards hours required by the order (and provided the pay for the previous leave was equal to or greater than the amount specified in the order).

• Enforcement: Similar to other orders/ordinances, the new emergency order prohibits retaliation or discrimination against employees who seek to assert rights prescribed in the order. Employees who claim a violation of the order may file a lawsuit in a California court and may be awarded attorney fees (no attorney fees available for prevailing employers). 

Sue M. Bendavid and Tal Burnovski Yeyni are Employer Defense attorneys.

[1]  Considered full-time by employer, or works on average 40 hours per week in the two weeks preceding the leave.

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.