Los Angeles Mayor Signs COVID-19 Supplemental Paid Sick Leave Order

The Los Angeles City Council recently passed an ordinance providing supplemental paid sick leave to employees affected by COVID-19 who were employed “with the same Employer from February 3, 2020 through March 4, 2020.” Los Angeles mayor Eric Garcetti had until April 7, 2020, to sign the ordinance adding Article 5-72HH to Chapter XX of the Los Angeles Municipal Code. Instead, on April 7, Mayor Garcetti signed an emergency COVID-19 Supplemental Paid Sick Leave order with significant modifications to the council’s version of the sick leave ordinance in order to balance the potential burdens on businesses.

The order now applies to employers with “500 or more employees within the City of Los Angeles” or “2,000 or more employees within the United States.”

The list of businesses exempted from the supplemental sick leave requirements now includes:

• employers of emergency personnel and health care workers;
• critical parcel carriers;
• employers with paid leave or paid time-off policies that provide “a minimum of 160 hours of paid leave annually”;
• “new businesses that started in the City or … relocated from outside the City on or after September 4, 2019 through March 4, 2020” and were not “in business in the City in the 2018 tax year”);
• government agencies; and
• businesses or organizations that were closed for 14 days or more due to a city official’s order related to the COVID-19 pandemic, or that provided at least 14 days of leave.

The ordinance previously exempted only “health care provider[s],” as that term is described in California Government Code Section 12945.2(c)(6), and employees under a collective bargaining agreement (CBA). Now, employees with a CBA are exempted only “if it contains COVID-19 related sick leave provisions” as of April 7, 2020. The order provides that “[w]hen the [CBA] expires or is otherwise open for renegotiation, the [order’s] provisions … may only be expressly waived if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.”

With respect to healthcare workers, the list of exempted employees has been broadened to encompass all emergency personnel included in the City of Los Angeles’s April 1, 2020, “Safer at Home” order, as well as “individuals, including contract workers, working at a health facility licensed under California Health & Safety Code Section 1250.”

The offset provisions for amounts previously paid to employees for COVID-19 related issues now include any amounts paid “in response to an Employee’s inability to work due to COVID-19” and will reduce employers’ paid sick leave obligations. This offset would include amounts paid to an employee who was off work if a business was closed due to the pandemic for fewer than 14 days.

The order provides that “[a]n Employee who has been employed with the same Employer from February 3, 2020 through March 4, 2020, is entitled to supplemental paid sick leave, if … unable to work or telework, as follows:

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.”

The order caps “the supplemental paid sick leave amount paid to an Employee” at $511 per day and $5,110 in aggregate.

An eligible employee of a covered employer may request supplemental sick leave orally or in writing (and need not provide documentation) if he or she is unable to work or telework for the following reasons set forth in the order:

1. The Employee takes time off due to COVID-19 infection 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 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. This provision is only applicable to an Employee who is unable to secure a reasonable alternative caregiver.

An employee can bring an action in the Superior Court of the State of California to enforce a violation of the order. Employee rights under the order may not be waived in a settlement or severance agreement.

Mayor Garcetti suggested that the city council amend its ordinance with the modifications contained in his emergency COVID-19 Supplemental Paid Sick Leave order. For now, the mayor’s emergency order has taken effect and it will “be in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.” The ordinance that the city council passed on March 27, 2020, has been temporarily suspended, replaced, and superseded by the mayor’s emergency order.

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.