Los Angeles Mayor Eric Garcetti issued a public order April 7
Los Angeles employers with 500 or more employees within the city or 2,000 or more employees within the United States will have to provide additional paid leave to workers affected by COVID-19 under an emergency order recently signed by the city’s mayor.
The mayor’s April 7 order, “COVID-19 Supplemental Paid Sick Leave,” loosens the definition of employers that must provide supplemental paid sick leave during the COVID-19 pandemic from that approved March 27 by the Los Angeles city council and provides exemptions that weren’t in the council’s ordinance.
The requirement went into effect April 10.
Mayor Eric Garcetti noted in the public order that the modifications to the council’s ordinance stemmed from a concern over placing “excessive burdens and costs upon businesses” and suggested that the council amend its ordinance.
Under the council’s measure, employers with 500 or more employees are required to provide supplemental paid sick leave and exemptions are limited to first responders, healthcare providers, and employers who are under a collective bargaining agreement.
The council’s ordinance is aimed at supplementing the Family First Coronavirus Response Act (FFCRA) signed into law by President Donald Trump on March 18. The federal law mandates paid sick and family leave for companies with less than 500 employees. The council wanted to protect workers for the city’s largest employers who are not covered by the federal requirements.
Both Los Angeles measures require that covered employers provide 80 hours of supplemental paid sick leave to full-time employees who perform work within the city limits and were on the payroll from February 3, 2020, through March 4, 2020 and require that a lesser amount of supplemental paid leave be provided to part-time employees. The council’s ordinance expires Dec. 31, 2020, while the mayor’s measure expires 2 calendar weeks after the expiration of the COVID-19 local emergency.
Under the council’s measure, employers with 500 or more employees are required to provide supplemental paid sick leave …
Pablo Orozco, an attorney with Nilan Johnson Lewis P.A., said the order issued by the mayor is the one that employers must abide by because the mayor has the ultimate authority to approve or veto ordinances passed by the council. That the mayor’s order controls was confirmed by a spokesman in the mayor’s office.
Los Angeles city employers were already under a requirement to provide paid sick leave. Covered employers are required to provide employees with at least 48 hours of paid sick leave or 1 hour for every 30 hours worked. The mayor’s order means that covered employers will have to provide an additional 40 hours of paid sick leave to full-time employees unless an exemption or offset applies.
Who does the law apply to?
The mayor’s order applies to employers that have either (1) 500 or more employees within the city’s limits or (2) 2,000 or more employees within the United States.
Who is covered?
The definition of employee under both requirements is an individual who performs any work in the geographic boundaries of the city for an employer. But the council noted that a worker is presumed to be an employee and the employer has the responsibility for demonstrating that a worker is a bona fide independent contractor and not an employee. Both require that an employee must have been with the same employer from February 3, 2020 through March 4, 2020.
Los Angeles County officials declared a local public health emergency regarding the coronavirus on March 4.
Full-time and part-time employees are covered under both the council’s ordinance and the mayor’s order.
Paid supplemental sick leave
Full-time employees receive 80 hours of supplemental paid sick leave under both requirements.
An employee who works less than 40 hours per week receives supplemental paid sick leave that averages two weeks of pay from Feb. 3, 2020 through March 4, 2020 under both requirements.
Employees can make a written or oral request for leave in instances when the employee takes time off work because:
- A public health official or health care provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19 (the mayor’s order also adds instances where the employee takes time off because of a COVID-19 infection); or
- 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; or
- The employee needs to care for a family member who is not sick but who public health officials or health care providers have required or recommended isolation or self-quarantine; or
- The employee needs to provide care for a family member whose senior care provider or whose school or childcare provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public official’s recommendation. The mayor’s order notes that this requirement is only applicable to an employee who is unable to secure a reasonable alternative caregiver.
Qualifying events under the Los Angeles measures differ slightly from those under the FFCRA.
Employers cannot require a doctor’s note or other documentation to provide the supplemental sick leave under either the mayor’s order or the council’s ordinance.
Payments are capped at $511 a day and for a total of $5,110 under both of the Los Angeles versions.
Under the FFCRA, certain qualifying events for paid sick leave will be paid at two-thirds the employee’s regular rate subject to certain caps.
Both of the Los Angeles measures allow employers to offset the newly required supplemental paid sick leave.
The mayor’s order provides that sick leave can be reduced for every hour that an employer has allowed an employee to take paid leave for one of the reasons – COVID-19 infection, self-quarantine, if they are 65 or older, if they have certain medical conditions or to take care of a family member – allowed under the emergency order on or after March 4, 2020.
While the ordinance approved by the city council had a narrow range of exemptions that only included first responders, health care providers and employers with collective bargaining agreements, the mayor’s order encompasses several other categories, including:
- Emergency and health services personnel, including emergency workers, gang and crisis intervention workers and related contractors.
- Critical parcel delivery. Employees that work for global parcel delivery services are exempt because it is an essential emergency service.
- Generous leave. Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
- New businesses. Businesses that started in the city or relocated to the city on or after Sept. 4, 2019 through March 4, 2020.
- Government. Employees of government agencies are exempt.
- Closed businesses and organizations. Businesses or organizations that were closed or not operating for 14 or more days because of a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave.
The mayor’s order creates a private right of action for employers who fail to comply and also forbids employers from taking retaliatory actions such as firing, reducing pay or otherwise discriminating against employees who take advantage of the supplemental paid sick leave mandate.