Hunton Employment & Labor Perspectives

Los Angeles (LA) Mayor Eric Garcetti has issued an emergency order modifying the City’s recently passed COVID-19 supplemental paid sick leave requirements.  The prior ordinance, adopted on March 27, 2020, by the LA City Council, had required LA employers with 500 + employees nationally, to provide up to 80 hours of supplemental paid sick leave.  In a nod to the instrumental role employers will play in the City’s revival in the aftermath of the coronavirus crisis, Mayor Garcetti modified the paid leave requirements in a number of key ways.

First, the revised supplemental paid sick leave requirements will only affect employers with 500 or more employees within the City, or 2000 or more employees within the United States.  Second, the categories of businesses that are exempt from these supplemental paid sick leave requirements has been expanded.  Third, paid sick leave requirements will expire two weeks after the expiration of the COVID-19 local emergency order (rather than the end of 2020).

Key questions relating to the Mayor’s Order are answered below.

Which Employers Are Covered By The City’s Supplemental Paid Sick Leave Requirements?

Non-exempt employers with 500+ employees within the City of Los Angeles, or with 2000+ employees within the U.S., may be required to provide paid sick leave to employees who meet both of the following criteria:  (1) the employee performs work within the geographic boundaries of the City of Los Angeles; and (2) the employee was employed by the same employer from February 3 through March 4, 2020.

Which Employers Are Exempted From The Supplemental Sick Leave Requirements Under The Mayor’s Order?

• Any business or organization that was closed or not operating for 14 or more days due to a City official’s emergency COVID-19 order, or already provided at least 14 days of leave;
• New businesses starting in, or relocating to, the City on or after September 4, 2019 through March 4, 2020, who were not in operation in the City during tax year 2018 (construction businesses and film producers cannot qualify for this exemption);
• Employers whose leave policies already provide 160 hours of paid leave annually need not provide additional leave to an employee that receives this “more generous paid leave”;
• Employers of emergency and health services personnel;
• Employers that provide critical parcel delivery; and
• Governmental agencies.

 Which Employees Are Eligible For Supplemental Paid Sick Leave?

Employees of covered employers who are unable to work or telework and who request paid sick leave, verbally or in writing, while this law is in effect, because of any of the following four circumstances:

• The employee has a COVID-19 infection or 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 such as heart disease, asthma, lung disease, diabetes, kidney disease, 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 (for children under 18) temporarily ceases operations in response to a public health or other public official’s recommendation. This only applies if the employee is unable to secure a reasonable alternative caregiver.

Employers may not request a doctor’s note or other documentation to verify that an employee falls within one 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.  Full-time employees are eligible to receive up to 80 hours of COVID-19 paid sick leave.  Part-time employees are eligible to receive an amount of sick leave no greater than the employee’s average two week pay during the period of February 3, 2020 to March 4, 2020.  Regardless, an employer’s maximum obligation cannot surpass $511/day and $5,110 in total.

Are Employers Who Have Already Provided Sick Leave Able To Offset Their Obligations?

Potentially.  As noted, employers who offer more than 160 hours of paid leave annually need not offer additional leave under the Mayor’s Order.  An employer that is not exempted from the Order may offset each hour of sick leave that it provided for COVID-19 related reasons (on or after March 4, 2020) if the sick leave was paid in an amount equal to or greater than the amount required by the Mayor’s Order, and the paid leave was not previously accrued.

Do Collective Bargaining Agreements Supersede The Order?

 Only a collective bargaining agreement in place as of April 7, 2020, that contains a COVID-19 related sick leave provision may supersede the Mayor’s Order. For CBAs that expire or are renegotiated after April 7, 2020, the CBA may expressly waive the provisions of the Mayor’s Order if the waiver is explicitly set forth in the CBA in “clear and unambiguous terms.”

What Are The Penalties If An Employer Does Not Comply With The Mayor’s Order?

 The Order 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.