New Los Angeles Ordinance Provides Supplemental Paid Sick Leave in Response to COVID-19 Pandemic

UPDATE: On April 7, 2020, Mayor Garcetti signed an emergency paid sick leave order that significantly expands supplemental COVID-19 paid sick leave in Los Angeles. Our blog post on the details of the order can be found here.

On March 27, 2020, the Los Angeles City Council approved a new paid sick leave ordinance applicable to large employers (those with more than 500 employees nationally not covered by the new federal paid leave law known as FFCRA). Although Mayor Garcetti has yet to sign the ordinance into law, once he does, it will provide most employees of large employers in the City of Los Angeles with immediate access to additional paid sick leave.

Does The Ordinance Apply to Your Business?

The ordinance applies to all employers with more than 500 employees nationally who are not covered by FFCRA. The FFCRA provides additional sick leave to employers with fewer than 500 employees.

Employees – including those who are full-time, part-time or temporary – who have worked for the same employer from February 3, 2020, to March 4, 2020, and who performed any work in the City of Los Angeles are eligible for the benefit.

Two types of employees are not eligible for the leave: (a) healthcare providers (as defined by California Government Code section 12945.2); and (b) first responders. The ordinance defines first responders to include peace officers, firefighters, paramedics, EMTs, public safety dispatchers, safety telecommunicators, emergency response communication employees; and rescue personnel.

How Much Additional Sick Leave Is Provided?

The ordinance requires up to 80 hours of additional paid sick leave for COVID-19 reasons, on top of any existing paid sick leave policies, available for use until December 31, 2020.

When May Employees Use the Leave?

Employees may use the additional paid sick leave for any of the following four COVID-19 related reasons:

1. The employee takes time off work because a public health official or healthcare provider requires or recommends the employee to 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 a 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 to isolate 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 child care provider caring for a child under the age of 18 temporarily stops operations in response to a public health or other public official’s recommendation.

How Is Paid Sick Leave Calculated?

• Full-time employees receive 80 hours of paid sick leave under this ordinance calculated using the employee’s average two-week pay from February 3, 2020, to March 4, 2020, capped at $511 per day.
• Part-time employees are entitled to sick leave pay in an amount no greater than their average two-week pay from February 3, 2020, to March 4, 2020.
• Employees of joint employers are not entitled to double dip in the amount of paid sick leave they receive; rather, they are limited to the maximum of 80 hours supplemental paid sick leave.

Can Employers Require Employees to Provide a Doctor's Note?

No. Employers may not require a doctor’s note or other documentation for the use of this additional paid sick leave relating to COVID-19. Employees can request paid sick leave either in writing or orally.

Although employers are not permitted to ask for supporting documentation with respect to employees seeking supplemental paid sick leave under the ordinance, it is important for employers to document the provision of paid supplemental sick leave to protect against employees later claiming they did not receive the benefit.

Additionally, any employer subject to the FFCRA must keep records showing the provision of the supplemental paid sick leave in order to receive the tax credit.

What if Employers Have Already Provided Additional Paid Sick Leave?

If after March 4, 2020, an employer has already provided supplemental paid leave to covered employees for COVID-19 (on top of the employee’s accrued paid leave), the employer gets a credit for those hours. For example, if the employer already provided employees 40 hours of supplemental paid leave, it must only provide 40 more hours under this ordinance.

Do I Have to Offer Supplemental Paid Sick Leave to Employees Terminated Due to Lack of Work or Because my Business Ceased Operations Stemming From COVID-19?

No. The ordinance only provides supplemental paid sick leave to employees who request to take off work due to one of specifically enumerated reasons related to COVID-19.

Where an employer terminates employees due to lack of work or because it ceases operations in response to the COVID-19 pandemic, employers need not provide the terminated or furloughed employees with supplemental paid sick leave.

Do I Need to Pay Out Accrued and Unused Supplemental Paid Sick Leave Upon an Employee’s Termination?

No. Consistent with prior California and Los Angeles City laws, the ordinance does not require employers to pay out unused paid sick leave to eligible employees at termination, resignation, retirement, or other separation from employment.

What Are the Consequences of Not Following the Ordinance?

Any employee claiming a violation of the ordinance may be awarded (a) reinstatement to the position the employee was discharged from in violation of the ordinance, (b) back pay and supplemental paid sick leave unlawfully withheld, and (c) attorneys’ fees and costs.

Employer COVID-19 Resources

Employers are encouraged to consult counsel as they confront the unique challenges of managing a workforce during the COVID-19 pandemic, and as they consider policy changes necessary to comply with new legislation on the federal, state, and local levels.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.