Hunton Employment & Labor Perspectives

In the face of unprecedented challenges due to COVID-19, employers have been forced to balance the need to mitigate current health risks against the need to protect their future financial viability.  Last week, the Los Angeles City Council made navigating that balance more difficult for some employers.

Click here to read our update on revisions made to this Ordinance by Los Angeles Mayor Eric Garcetti.

The Los Angeles City Council adopted an ordinance requiring employers with 500 or more employees nationally to provide up to 80 hours of supplemental paid sick leave in some instances.  Designed to supplement the federal Families First Coronavirus Response Act (FFCRA) – which imposes similar obligations on employers with fewer than 500 employees – the City’s ordinance broadens the number of employers now required to provide paid COVID-19 related sick leave to certain employees.

Which Employers Are Covered By The City’s Ordinance?

Employers with 500+ employees (nationally) may be required to provide paid sick leave to employees who meet both of the following criteria:  first, the employee performs work within the geographic boundaries of the City of Los Angeles; and, second, the employee was employed by the same employer from February 3 through March 4, 2020.  Employers of first responders and health care providers are expressly exempt from the ordinance’s leave requirements.

Which Employees Are Eligible For Supplemental Paid Sick Leave?

Employers are not automatically required to provide paid sick leave under the ordinance.  Rather, employees have the burden of first requesting paid sick leave (verbally or in writing).  Once a request is made, an employer is only required to provide paid sick leave if the employee “takes time off” (between March 4 and December 31, 2020) “because of” any one of the following four circumstances:

• A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
• The employee is at least 65 years old or has a health condition or weakened immune system;
• 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 be in isolation or self-quarantine; or
• The employee needs to provide care for a family member whose senior care provider or whose school or child care provider temporarily ceases operations in response to a public health or other public official’s recommendation.

Employers may not request a doctor’s note or other documentation to verify that an employee falls within one or more of the above categories.

Are Employers Required To Provide Full-Time And Part-Time Employees With Paid Leave?

Yes, but an employer’s obligation differs depending on the full-time/part-time status of the employee.  Regardless, an employer’s maximum obligation cannot surpass $511/day and $5,110 in total.

Are Employers That Have Closed Temporarily But Continue To Pay Employees Able To Offset Their Obligations?

Maybe.  Generally, an employer may offset its obligation by each hour (on or after March 4, 2020) it has provided an employee with paid leave in an amount equal to or greater than the amounts required by the ordinance, so long as the paid leave was not previously accrued.

Employers should consult counsel to determine whether they have already complied with the City’s new paid leave requirements by continuing to pay employees who are furloughed or not working due to COVID-19.

What Are The Penalties If An Employer Does Not Comply With The Ordinance?

The ordinance creates a private cause of action for employees alleging a violation(s), and prevailing employees may be awarded reinstatement, back pay and unlawfully withheld supplemental paid sick leave, plus reasonable attorneys’ fees and costs, among other available relief.