On April 7, 2020, Los Angeles Mayor Garcetti enacted an order that provides two weeks of supplemental paid sick leave (LA Sick Leave) to workers of private employers for COVID-19 related reasons. The recent enactment of the federal paid sick leave provision of the Families First Coronavirus Response Act (FFCRA) applies only to companies with fewer than 500 employees. This order seeks to “bridge the gap” by creating mandatory paid sick leave for the Los Angeles employees of many larger employers who are not bound by the FFCRA. For more information about FFCRA, please visit our blog post.
This article provides a summary of what we currently know about LA Sick Leave so far.
Which Employers are Subject to LA Sick Leave?
LA Sick Leave applies to employers with either 500 or more employees within the city of Los Angeles, or 2,000 or more employees in the United States. Notably, the order defines “employee” broadly as “an individual who performs any work within the geographic boundaries of the City for an Employer.”
According to the implementing rules, the size of an employer’s business is determined by the average number of employees employed during the previous calendar year. A worker that worked in multiple locations should be counted as an employee within the City of Los Angeles if they performed any work within the City’s geographic boundaries in the previous calendar year.
Who is eligible to take LA Sick Leave?
To be eligible, an employee must have 1) been employed with the same employer from February 3, 2020, through March 4, 2020 and 2) be unable to either work or telework.
What are the qualifying COVID-19-realted reasons for LA Sick Leave?
An employer must provide supplemental sick leave upon the oral or written request of the employee that is unable to work or telework for one of the four following COVID-19 related circumstances:
- The employee tests positive for COVID-19 or takes leave because a public health official or healthcare provider requires or recommends that 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 a public health official or healthcare provider has required or recommended isolation or self-quarantine; or
- The employee needs to provide care for a family member whose senior care provider or school/childcare provider (for children under the age of 18) temporarily ceases operations in response to recommendation from a public health official. This provision is only applicable when an employee is unable to secure a reasonable alternative caregiver.
Can Employers Require Documentation from a Doctor?
The law states that employers cannot require a doctor’s note or other documentation.
What is the amount of supplemental sick leave that must be provided?
The amount differs for full-time and part-time employees:
- Full-time Employees: 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.
- Part-time Employees: 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 paid sick leave amount paid to an employee is capped at $511 per day and $5,110 in the aggregate.
How Does LA Sick Leave interact with other paid leave entitlements?
LA Sick Leave must be provided in addition to any paid leave already provided to the employee.
However, under the order the employer’s obligation to provide 80 hours of paid sick leave is reduced for every hour the employer previously provided paid leave on or after March 4, 2020, for any of the COVID-19 related reasons above in an amount equal to or greater than under LA Sick Leave (not including any previously accrued hours).
Which Employers are Exempted from Providing LA Sick Leave?
The order provides for the following exemptions:
- Generous Leave – If an employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the employer is exempt from any obligation to provide supplemental leave pursuant to the order for the employee that received the more generous paid leave benefit. According to the implementing rules, paid time off, compensated time off, and paid sick leave count toward the 160 hour minimum. Paid holidays and access to paid bereavement leave do not count toward the minimum.
- New Business – The order exempts new businesses that started in the City or businesses that relocated from outside the City on or after September 4, 2019 through March 4, 2020. To qualify for the exemption, an employer could not have been in business in the City during the 2018 tax year.
- Closed Businesses and Organizations – The order exempts any business or organization that: 1) was closed for a period of 14 or more days due to a city official’s emergency order related to COVID-19; or 2) has previously provided at least 14 days of paid or unpaid leave.
For more information about other exemptions that may apply to employers see section IV of the order.
How long is LA Sick Leave Effective?
The mayor’s order is open-ended, lasting until two calendar weeks after the COVID-19 local emergency ends.
Are there any other Prohibitions Placed on Employers?
Employers are prohibited from discrimination and retaliation against an employee for exercising their rights under the order.
What are the Penalties for Non-compliance?
If an employee is improperly denied LA Paid Sick Leave, the ordinance allows an employee to sue the employer and, if successful, may be awarded (1) reinstatement; (2) back pay and supplemental sick pay that was withheld; and (3) attorneys’ fees.
State and local responses to the pandemic are ongoing and dynamic from day to day. Our compliance team continues to monitor legislation closely and will update this article accordingly as new legislation is released.
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