On April 28, 2020, the County of Los Angeles Board of Supervisors unanimously passed an interim urgency ordinance requiring employers with 500 or more employees to provide supplemental paid leave for COVID-19-related reasons. This follows similar measures taken over recent weeks in other local jurisdictions, such as San Francisco.
The ordinance is designed to require larger employers that are not subject to the federal Families First Coronavirus Response Act (FFCRA), which provides for up to 80 hours of emergency paid sick leave that can be used for COVID-19-related events, to provide similar benefits to their employees. The ordinance applies only to employers operating in Los Angeles County who have 500 or more employees nationally; in those instances, the ordinance extends paid sick leave benefits only to those employees in Los Angeles County who are employed on the effective date of the ordinance. The ordinance also applies only to unincorporated areas of Los Angeles County.
Eligible employees under the ordinance are entitled to supplemental paid sick leave in the amount of 80 hours for full-time employees, “calculated based on an Employee’s highest average two week pay over the period of January 1, 2020 through the effective date of” the ordinance. Part-time employees are entitled to “receive Supplemental Paid Sick Leave in an amount no greater than the Employee’s average two week pay over the period of January 1, 2020 through the effective date of” the ordinance.
Like the FFCRA, the paid sick leave benefits are capped at $511 per day and $5,110 in the aggregate. Also similar (but not identical) to the FFCRA, the supplemental paid sick leave may be used upon written request of the employee where the employee is unable to work (or telework) due to the following COVID-19 circumstances: (1) the employee is recommended to isolate or self-quarantine by a public health official or healthcare provider; (2) the employee is subject to a federal, state, or local quarantine order; (3) the employee needs to care for a family member who is subject to a federal, state, or local quarantine or isolation order or who has been advised by a healthcare provider to self-quarantine; or (4) the employee needs time away from work to “provide care for a family member whose senior care provider or whose school or child care provider ceases operations in response to a public health or other public official’s recommendation.” The ordinance provides that this new supplemental paid sick leave entitlement is in addition to any paid sick leave the employee may be entitled to under existing California law. (Note: The ordinance excludes food sector workers, who are subject to an earlier executive order from the governor that provides similar benefits.)
Here are some key points on the Los Angeles County ordinance, and a few key distinctions between the new ordinance and the federal FFCRA that may be relevant to covered employers.
- While the general intent appears to require larger employers to provide benefits comparable to those required of smaller employers under the federal FFCRA, the ordinance deviates from the FFCRA in the following significant ways:
- The ordinance appears to require paying out supplemental paid sick leave based on the full amount of the highest two-week pay period since January 1, 2020. Moreover, this full pay appears to apply regardless of whether the supplemental sick leave is taken for personal COVID-19 reasons (e.g., the employee is quarantined) versus because the employee does not have a caregiver for COVID-19-related reasons (e.g., the employee stays home to care for a minor child because the child’s school is closed or to care for a family member quarantined due to COVID-19). In contrast, the FFCRA entitles employees to benefits at the rate of two-thirds of the employee’s regular rate, capped at $200 per day and $2,000 in aggregate, in the latter scenario.
- The ordinance offers greater caregiver entitlements compared to the FFCRA. Under the ordinance, an employee may use the supplemental paid sick leave to care not only for a child in the event of a school closure or the unavailability of the child’s regular care provider (as is the case with the FFCRA), but also when the employee needs to stay home to care for an adult family member whose “senior care provider” is unavailable due to COVID-19. The FFCRA, in contrast, does not extend benefits to care for an adult due to the closure of a senior care facility or the unavailability of a regular senior care provider.
- The ordinance expressly authorizes an employer to “require a doctor’s note or other documentation for the use of Supplemental Paid Sick Leave.”
- The ordinance contains an anti-retaliation provision prohibiting an employer from discharging, discriminating against, or reducing the compensation of any employee who seeks supplemental paid leave or opposes any act made unlawful by the ordinance.
- The ordinance provides for a private right of action by employees to seek reinstatement, back pay, and any supplemental paid sick leave unlawfully withheld, and “[o]ther legal or equitable relief the court may deem appropriate.” The ordinance also allows for the award of attorneys’ fees and costs to a successful employee litigant.
- The ordinance does not allow employees to waive their rights under the new law, except that it provides that union-represented employees may waive some or all of their rights under the ordinance so long as such waiver is “explicitly set forth in the [collective bargaining] agreement in clear and unambiguous terms.”
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.