City of Los Angeles Passes Ordinance Requiring Large Employers to Provide Employees with Supplemental Paid Sick Leave

On March 27, 2020, the Los Angeles City Council passed Article 5-72HH “COVID-19 Supplemental Paid Sick Leave,” an ordinance that would require “employers with 500 or more employees nationally” to provide 80 hours of paid sick leave to their employees working in the City of Los Angeles.

The purpose of the legislation is to “ensure fair employment practices during the economic upheaval resulting from the pandemic and to reduce the demand on government-funded social services.” The ordinance would require all covered employers not already doing so to provide employees with at least two weeks of additional paid COVID-19–related leave during the current public health crisis consistent with federal guidelines.

The ordinance was sent to Mayor Eric Garcetti on March 28, 2020, and is awaiting signature no later than April 7, 2020.

The Supplemental Paid Sick Leave Ordinance

In short, the ordinance applies to employers with 500 or more employees nationally and employees in the City of Los Angeles who have been employed with the same employers from February 3, 2020 through March 4, 2020.

The Supplemental Paid Sick Leave ordinance provides as follows:

1. 1. An Employee who works at least 40 hours per week or is classified as a full-time Employee by the Employer shall receive 80 hours of Supplemental Paid Sick Leave. Supplemental Paid Sick Leave shall be calculated based on an 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 by the Employer shall 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.

B. In no event shall the Supplemental Paid Sick Leave amount paid to an Employee 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.

SEC. 220.54 EMPLOYEE REQUEST FOR SUPPLEMENTAL PAID SICK LEAVE.

A. An Employer shall provide Supplemental Paid Sick Leave upon the oral or written request of an Employee if:

1. 1. The Employee takes time off because a public health official or health care provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
   2. The Employee takes time off work 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 work 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 work 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.

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

Employers of first responders and healthcare providers “as defined in Section 12945.2 of the California Government Code” are exempted.

The ordinance also contains an offset provision, allowing employers to reduce the required 80 hours of supplemental paid sick leave “for every hour an [e]mployer allowed an [e]mployee to take paid leave in an amount equal to or greater than the requirements [set forth above], not including previously accrued hours, on or after March 4, 2020, for any of the reasons described in Section 200.54.A.1-5.”

The offset provision references “Section 220.54.A.1-5” but the March 27, 2020, version of the ordinance provides only four reasons an employee may use supplemental paid sick leave. A prior version of the ordinance included a fifth reason that an employee could use supplemental paid sick leave—when the “[e]mployee is off work because the [e]mployer’s business or work location temporarily ceases operations in response to a public official’s closure recommendation due to the COVID-19 public health pandemic.” While that reason was omitted from the latest version of the ordinance, the current offset provision still seems to reference the older five reasons for supplemental paid sick leave.

If there is a violation of the Supplemental Paid Sick Leave ordinance, the ordinance can be enforced by an employee bringing an action in the Superior Court of the State of California seeking:

1. “Reinstatement to the position the Employee was discharged in violation of this article.”
2. “Back pay and Supplemental Paid Sick Leave unlawfully withheld, calculated at the Employee’s average rate of pay.”
3. “Other legal or equitable relief the court may deem appropriate.”

“If an [e]mployee is the prevailing party in any legal action the court may also award reasonable attorneys’ fees and costs as part of the costs recoverable.”

Notably for separation agreements, “a waiver by an Employee of any or all of the provisions of this article shall be deemed contrary to public policy and shall be void as unenforceable.”

Except for the rights of an employee under the Families First Coronavirus Response Act, the provisions of the article are in addition to or independent of any other rights available to an Employee.”

This ordinance shall become effective upon publication pursuant to Los Angeles Charter Section 253 and remain effective until December 31, 2020, unless the Los Angeles City Council extends the ordinance.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.