On June 24, 2021, Los Angeles Mayor Garcetti issued an order that requires employers to provide paid leave of up to four hours (per injection) for their employees working in the City of Los Angeles to obtain the COVID-19 vaccine (“LA Vaccine Leave”). LA Vaccine Leave is effective retroactively to January 1, 2021 and will remain in effect until September 30, 2021.
Who must provide LA Vaccine Leave?
All private employers with at least one employee working within the geographic boundaries of the City of Los Angeles must provide LA Vaccine Leave.
It is important to note that this Order differs from the City of Los Angeles’ previously revised Los Angeles Supplemental Paid Sick Leave Ordinance, which applied to employers with either 500 or more employees in the City of Los Angeles or 2,000 or more employees in the United States. This Order also differs from the ordinance enacted in May by the Los Angeles County Board of Supervisors that requires employers to provide vaccine leave for their employees working in unincorporated areas of Los Angeles County.
Who is Eligible for LA Vaccine Leave?
LA Vaccine Leave is available to any employee who performs work within the geographic boundaries of the City of Los Angeles for an employer and who has been employed with the same employer for 60 days.
What is the Amount of Leave Required?
The amount of LA Vaccine Leave that must be provided depends on the number of employees an employer has and 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 Vaccine Leave.
Employers with more than 25 employees:
Since California Supplemental Sick Leave already requires employers with more 25 or more employees to provide up to 80 hours of paid leave to employees for the same qualifying vaccine-related reasons, employees of those employers must first use that available paid leave before they are eligible for this additional LA Vaccine Leave.
Employers with fewer than 25 employees:
- Full-time: Employers must provide their full-time employee’s with up to four hours of LA Vaccine Leave for each injection, up to a total of eight hours.
- Part-time: Employers must provide their part-time employees LA Vaccine Leave on a prorated basis using the average number of hours worked in the 60 days preceding the injection or vaccine recovery.
The Order provides the following example: An employee worked 240 hours in the last 60 days (including non-working days). 240 hours divided by 60 days = average of 4 hours per day. The average of 4 hours per day x 7 days = average of 28 hours per week. At a prorated rate, the employee is eligible for 2.8 hours (2 hours 48 minutes) per vaccine injection and 5.6 hours (5 hours 36 minutes) for vaccine recovery.)
What does LA 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 prevents them from being able to work or telework.
What is the Rate of Pay during the Vaccine Leave?
Employers must pay exempt employees their normal rate of pay. For non-exempt employees, employers must pay the highest of:
- The employee’s normal rate of pay for the workweek the employee takes leave;
- L.A. minimum wage; or
- The employee’s average hourly pay for the preceding 60 days (excluding overtime).
The order caps pay at $511 per day (or $255.50 for each 4-hour period) or $1,022 in the aggregate, unless the federal government establishes a higher pay amount.
Can an Employer Offset other Paid Leave?
LA 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). However; for employers that already provided supplemental benefits for leave taken on or after January 1, 2021 (in addition to any other accrued leave) that is payable at an equal or greater rate and for the same reasons as LA Vaccine Leave, the employer may count the hours of the other supplemental benefit toward the total number of hours required by LA Vaccine Leave. For example, since California Supplemental Sick Leave and Los Angeles Supplemental Sick Leave already require some employers to provide paid leave to employees for the same qualifying vaccine-related reasons, employer may count the hours of this other COVID-19 specific supplemental benefit toward the total number of hours required by LA Vaccine Leave.
When Must an Employer Provide Retroactive Payment for LA Vaccine Leave taken After January 1, 2021?
There are two instances when an employer must retroactively provide payment for LA Vaccine Leave:
- If an employee took time off work to receive a COVID-19 vaccine or to recover from a COVID-19 vaccination on or after January 1, 2021, and the employer did not compensate the employee in an amount equal to or greater than what is required by LA Vaccine Leave.
- Then upon the oral or written request of an employee, the employer must provide retroactive payment to properly compensate the individual. Any retroactive payment required must be made before the payday for the next full pay period after the oral or written request of the employee.
- If the employer required the employee to use leave other than paid leave provided under California Supplemental Sick Leave or Los Angeles Supplemental Paid Sick Leave, such as vacation, paid or unpaid time off, or other sick leave benefits.
- Then upon the oral or written request of the employee, the employer must reclassify the paid leave taken as LA Vaccine Leave, and restore the leave taken by the employee under the different category of leave. Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of LA Vaccine Leave, must be reflected on the employee’s wage statement on or before the payday for the next full pay period after the oral or written request of the employee.
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 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 Posting Requirement?
While the Order does not specify a notice posting requirement, it is best practice for employers to inform their employees of the available leave and rights they may be entitled to when taking leave for purposes of obtaining a COVID-19 vaccination.
Are there any Employer Prohibitions?
Employers are prohibited from taking any adverse action against any person seeking to enforce their rights under LA 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.