Los Angeles Mayor Revises Existing, and Issues New, Order Requiring Paid Sick Leave for Absences Related to COVID-19 Vaccines

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On June 24, 2021, Los Angeles Mayor Eric Garcetti revised his Supplemental Paid Sick Leave Due to COVID-19 (SPSL) Order and issued a new order, Vaccine Paid Sick Leave Due to COVID-19 (CVL Order). The mayor’s orders come almost one month after the City Council, on May 26, approved a motion requesting that he take such actions. The mayor’s SPSL Order revisions apply prospectively, from June 24, 2021, and the SPSL Order continues to apply until two calendar weeks after the local COVID-19 emergency period ends. The CVL Order applies retroactively to January 1, 2021, and it will remain in effect until September 30, 2021, though employees on COVID-19 vaccine leave (CVL) on that date can continue to take the full amount of leave under the order.

Revised SPSL Order: The revised order—applicable to employers with either 500 or more employees in L.A. or 2,000 or more employees in the U.S.—contains two substantive, related changes. First, as of June 24, 2021, employees can use Los Angeles SPSL to cover time off to receive a COVID-19 vaccine—including time travelling to and from an appointment—and to recover from any symptoms related to the vaccine. Second, though the order continues to generally prohibit employers from requiring a doctor’s note or other documentation to substantiate SPSL use, there is now an exception that permits employers to require employees verify their receipt of a COVID-19 vaccine.

New CVL Order: The new order requires all employers to provide covered employees with CVL (paid time off to receive a COVID-19 vaccine, including time an employee spends traveling to and from an appointment, and time to recover from vaccination-related side effects that prevent the employee from being able to work or telework.) CVL is in addition to other paid leave available to an employee, including pre-COVID-19 California paid sick and safe time (California PSST) and post-COVID-19 California supplemental paid sick leave (California SPSL). Moreover, employers generally cannot require employees to use other paid or unpaid leave before using CVL (though, as we discuss below, in Amount of Leave, for employers with 26 or more employees there is a possible exception).

Retroactivity & Paystubs: The CVL Order is retroactive to January 1, 2021. Employees who, on or after January 1, 2021, took what would have been qualifying leave had the CVL Order been in effect and were paid less than what the CVL Order requires can, on or after June 24, 2021, submit an oral or written request to receive retroactive payment, and employers must make the payment on or before the payday for the next full pay period after the request. If employers required employees to use leave other than California SPSL or Los Angeles SPSL—such as vacation, paid or unpaid time off, or other sick leave benefits—then, upon an employee’s oral or written request, they must reclassify paid leave taken as CVL and restore leave the employee took. Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of CVL, must be reflected on the employee’s paystub on or before the payday for the next full pay period after the employee’s request. Importantly, however, these requirements do not apply if the leave the employee used qualifies under the CVL Order’s offset provision (see below, Offset).

Covered Employers & Employees: As noted above, the CVL Order differs from the SPSL Order because it applies to all private employers. The general definition of “employee,” however, is identical under both orders: an individual who performs any work within the geographic boundaries of Los Angeles for an employer if the employee has been employed with the same employer for 60 days. A notable difference, however, is the CVL Order contains a potential exemption for unionized workforces.

A collective bargaining agreement (CBA) in place on June 24, 2021 may supersede the CVL Order if it contains provisions providing CVL. If that CBA expires or is open for renegotiation, compliance with the CVL Order can be waived if the waiver is explicitly set forth in the CBA in clear and unambiguous terms. If a CBA in place on June 24, 2021 does not address CVL, an employer must comply with the CVL Order unless and until the CBA is amended to contain an express waiver in clear and unambiguous terms.

Amount of Leave: For full-time employees—those employees the employer considers full time or who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding CVL—employers must provide up to four hours of CVL to obtain each vaccine injection, and up to eight hours of CVL to recover from any vaccination-related side effects that prevent the employee from being able to work or telework. For non-full-time employees, the amount of CVL is prorated based on the average number of hours worked in the 60 days preceding injection or recovery. The CVL Order provides the following example:

Employee worked 240 hours in the last 60 days (including non-working days). Dividing 240 by 60 creates a four-hour daily average. Multiplying the daily average by seven produces a 28-hour weekly average. The employee is eligible for 2.8 hours (2 hours 48 minutes) per injection and 5.6 hours (5 hours 36 minutes) for recovery.

Although the CVL Order requires all covered employers to provide the same amount of CVL, employers with 26 or more employees need only provide CVL to employees who have exhausted all available California SPSL or Los Angeles SPSL.

Offset: Employers that provide another supplemental benefit that is in addition to any other accrued leave—including but not limited to California PSST and California SPSL—for leave taken on or after January 1, 2021, that is payable for the same CVL reasons, and is paid in an amount that equals or exceeds what the CVL Order requires, can count those supplemental benefit hours toward the amount of CVL hours they must provide.

Using Leave: Upon an employee’s oral or written request, an employer must allow the employee to use CVL. Employers can ask employees to provide written verification of their receipt of a vaccine.

Rate of Pay: For non-exempt employees, employers must pay CVL at the highest of the following rates: 1) employee’s normal rate of pay for the workweek the employee takes leave; 2) L.A. minimum wage; or 3) employee’s average hourly pay for the preceding 60 days (excluding overtime). Employers pay exempt employees in the same manner as they calculate wages for other forms of paid leave. 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.

Prohibitions: Employers cannot discharge, reduce in compensation or otherwise discriminate against employees for opposing any practice the order prohibits, requesting to use or actually using CVL, participating in proceedings related to the CVL Order, for seeking to enforce, or otherwise asserting, CVL Order rights. Additionally, employees cannot waive their CVL Order rights except in a CBA.

Enforcement: Employees can file a civil lawsuit in state court and, if they prevail, a court may award them reinstatement, back pay and CVL unlawfully withheld, other legal or equitable relief it deems appropriate, and reasonable attorneys’ fees and costs. Violations, however, will not result in criminal penalties.

Next Steps: With these orders taking effect immediately—and with respect to the CVL Order, retroactively—employers should quickly familiarize themselves with what the orders (that apply) require, determine whether and how their existing policies, practices, and procedures satisfy these requirements, whether they are providing supplemental benefits that qualify for offset against CVL, and work toward bringing leave and pay practices, including paystubs, in line with the orders’ requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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