Los Angeles Enacts New Emergency Paid Sick Leave Ordinance For Large Employers

Written by Jeremy Mittman and Stephen Franz

On April 7, 2020, Los Angeles Mayor Eric Garcetti approved the City Council’s Emergency Ordinance (“the Ordinance”) mandating employers of either (a) 500 or more employees within the City of Los Angeles; or (b) 2,000 or more employees within the United States, to offer Paid Sick Leave for COVID-19 related reasons.  The Ordinance is effective April 7, 2020.  The Ordinance is in response to the enactment of the federal Families First Coronavirus Response Act (“FFCRA”), which does not cover employers with more than 500 employees from its paid leave provisions.  While the Ordinance is designed to supplement the FFCRA and provide paid sick leave for Los Angeles employees of larger employers (with some exceptions), it differs from the FFCRA in several respects, set forth below.

Here is what employers need to know about the Ordinance:

• Who is a Covered Employer: The Ordinance defines an “employer” as a person (including through the services of a temporary service or staffing agency), who employs or exercises control over the wages, hours or working conditions of any employee.  The Ordinance applies to employers that have either (a) 500 or more employees within the City of Los Angeles; or (b) 2,000 or more employees within the United States.  Thus, employers with more than 2,000 employees nationally are covered, even if they have fewer than 500 employees within Los Angeles.
• Who is a Covered Employee: An “employee” is an individual who performs any work within the geographic boundaries of Los Angeles for the employer. This can be interpreted to include employees of companies not based in Los Angeles, but who perform any work within Los Angeles.  An employee is eligible for paid sick leave if (1) he or she is unable to work or telework; and (2) he or she has been employed with the same employer from February 3, 2020 through March 4, 2020.
• How Much Paid Sick Leave is an Employee Entitled to: Under the Ordinance, Employers must provide full-time employees with 80 hours of paid sick leave, to be paid based on the average two weeks’ pay from February 3, 2020 through March 4, 2020. Part-time employees are entitled to paid sick leave equal to their average two weeks’ pay from February 3, 2020 through March 4, 2020.  An employee’s sick pay shall not exceed $511 per day ($5,110 in the aggregate).
• Why Employees May Take Paid Sick Leave: Under the Ordinance, covered employers must provide full-time employees with 80 hours of paid sick leave for any of the following reasons:

1. COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine;
2. 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. 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. 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 officials recommendation. This provision is only applicable to an Employee who is unable to secure a reasonable alternative caregiver.

The Act contains a number of significant differences from the FFCRA.  Significantly, covered Los Angeles employees over 65 may take paid sick leave regardless of COVID-19 symptoms or health conditions.  Covered employees with health conditions may also preemptively take paid sick leave regardless of COVID-19 symptoms or diagnoses.  Moreover, it does not appear that an employee unable to work because of a “shelter-in-place” order is eligible for paid sick leave.

• Employers May Offset Prior Voluntary COVID-19 Leave: The Ordinance credits employers who have already offered and provided paid leave to help their employees.  An employer’s obligation to provide sick leave to an employee shall be reduced for every hour the employer allowed the employee to take paid leave, not including previously accrued hours, on or after March 4, 2020, for any of the four reasons described in the Ordinance (above), or in response to an employee’s inability to work due to COVID-19.
• Which Employers Are Exempt from Paid Sick Leave Requirements:

1. The Ordinance exempts “global parcel delivery services,” health care providers, and emergency service providers from paid sick leave requirements.
2. “New businesses” are also exempt from the Ordinance. A “new business” either started in Los Angeles or relocated from outside the city between September 4, 2019 through March 4, 2020.  The employer cannot have been in business in Los Angeles during the 2018 tax year.  Construction businesses and film producers do not qualify for this exemption.
3. Any business that was closed or not operating for a period of 14 or more days due to a Los Angeles official’s emergency order because of the COVID-19 pandemic, or provided at least 14 days of leave, is also exempt.
4. Finally, the Ordinance provides for a “generous leave” exemption. If an employer has a paid leave/paid time off policy providing a minimum of 160 hours of annual paid leave, the employer is exempt from providing further paid sick leave under the Ordinance.

• No Documentation Required for Paid Sick Leave: Employers may not require a doctor’s note or any other documentation for an employee to take paid sick leave
• No Definite Expiration Date for Ordinance: The Ordinance will expire two weeks after the expiration of the indefinite COVID-19 local emergency period.
• Limited Exemption for CBA: The Ordinance states that an in-place collective bargaining agreement may supersede the Ordinance only if it contains COVID-19 related sick leave provisions.
• Penalties for Noncompliance: An employee claiming a violation of the Ordinance may be awarded (1) reinstatement if he/she was discharged; (2) back pay and paid sick leave unlawfully withheld; and (3) reasonable attorneys’ fees and costs.

Employers should consult the Ordinance, or their trusted employment counsel, for further guidance.