On May 18, 2021, the Los Angeles County Board of Supervisors enacted an urgency ordinance (“Ordinance”) that requires employers to provide supplemental paid leave of up to four hours (per injection) for their employees working in unincorporated areas of Los Angeles County to obtain the COVID-19 vaccine (“LA County Vaccine Leave”). Importantly, LA County Vaccine Leave is only required if an employee has exhausted all leave available to them under California’s 2021 COVID-19 Supplemental Sick Leave law (“CA Supplemental Sick Leave”). LA County Vaccine Leave is effective retroactively to January 1, 2021 and will remain in effect until August 31, 2021.
Who must provide LA County Vaccine Leave?
All private employers that have employees working in the unincorporated areas of Los Angeles County must provide LA County Vaccine Leave.
Who is Eligible for LA Country Vaccine Leave?
LA County Vaccine Leave is available to all employees performing any work in the county’s unincorporated areas. However, to be eligible an employee must have exhausted all available leave time under the CA Supplemental Sick Leave law requirements. Since CA Supplemental Sick Leave already requires employers to provide up to 80 hours of paid leave to employees for the same qualifying vaccine-related reasons, employees must first use that available paid leave before they are eligible for this additional LA County Vaccine Leave.
What is the Amount of Leave Required?
The amount of LA County Vaccine Leave that must be provided depends on whether an employee is full or part-time. An employee is considered full-time if: 1) an employer considers them full-time; or 2) if they worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took LA County Vaccine Leave.
- Full-time employees are entitled to up to four hours of leave per injection;
- Non full-time employees are entitled to up to a prorated amount of four hours of leave per injection, based on their normally scheduled hours over a two-week period preceding the leave.
- For example, a part-time employee that works 20 hours over a two-week period can use up to 2 hours of LA County Vaccine Leave per injection.
What does LA County Vaccine Leave Cover?
Employers must provide paid leave that includes time spent for:
- traveling to and from a COVID-19 vaccine appointment,
- receiving the COVID-19 vaccine injection, and
- recovering from any symptoms related to receiving the COVID-19 vaccine that prevent them from being able to work or telework.
What is the Rate of Pay during the Vaccine Leave?
Employers must pay employees their normal rate of pay, which is calculated using the employee’s highest average two-week pay over the period of January 1 through May 18, 2021 (the effective date of the ordinance).
Can an Employer Offset other Paid Sick Leave?
LA County Vaccine Leave must be provided in addition to any job-protected paid leave employees receive under California’s existing statewide paid sick leave law (Labor Code 246). The Ordinance is silent on the interaction of LA County Vaccine Leave with other local ordinances.
Can an Employer Require Leave Documentation?
Employers may require employees to provide written documentation verifying receipt of the COVID-19 vaccine in order to receive LA County Vaccine Leave. Employers should be cognizant that this type of documentation may contain medical information and should be aware of the guidance from the Department of Fair Employment and Housing, requiring this information be kept confidential and separate from personnel files.
Is there a Notice Requirement?
Employers must conspicuously display a written notice that will be made available by the Los Angeles County Department of Consumer and Business Affairs (“DCBA”) at a later date.
Are there any Employer Prohibitions?
Employers are prohibited from taking any adverse action against any person seeking to enforce their rights under LA County Vaccine Leave.
What are the Record Keeping Requirements?
Employers are required to keep records for four years demonstrating their compliance with the Ordinance, which includes the following for each employee:
- payroll records documenting the employee’s name, address, and occupation;
- dates of employment;
- pay rate(s);
- and the amount paid.
Failure to comply with these record keeping requirements, or provide the DCBA access to these records, creates a rebuttable presumption that the employer did not comply with LA County Vaccine Leave.
Los Angeles employers should review their existing paid leave policies relating to COVID-19 in light of this new mandate and ensure HR personnel and managers are consistently applying the policy for employees taking time off to obtain the vaccine. This article will be updated as we continue to learn more.