Vaccine-Related Paid Leave Required for Employees in City of Los Angeles

Foley & Lardner LLP

Foley & Lardner LLPOn June 24, 2021, Los Angeles Mayor Eric Garcetti issued an Emergency Public Health Order (Order) regarding mandatory “COVID-19 Vaccine Leave” upon an employee’s request. The Order explains that it has been issued in a bid to ensure that workers in the geographic boundaries of the city of Los Angeles are not “forced to decide between a paycheck and securing a vaccine to safeguard their own well-being and promote public health.” 

COVID-19 Vaccine Leave Compliance

The order defined COVID-19 Vaccine Leave to include the time an employee spends traveling to and from an appointment, receiving the injection, and recovering from vaccination-related side effects that prevent the employee from being able to work or telework.  Under the Order, an employer shall provide COVID-19 Vaccine Leave upon the oral or written request of an employee—defined as an individual who has been employed with the employer for at least 60 days—as follows:

  • Employers with 25 or fewer employees shall:
    • Provide a full-time employee (40 or more hours per week) up to four hours of COVID-19 Vaccine Leave to obtain each vaccine injection, and up to eight hours of COVID-19 Vaccine Leave to recover from any vaccination-related side effects.
    • Provide a part-time employee (less than 40 hours per week) up to the prorated amount of four hours of COVID-19 Vaccine Leave per injection based on the average number of hours worked in the 60 days preceding the injection, and up to the prorated amount of eight hours of COVID-19 Vaccine Leave to recover from any vaccination-related side effects.

Employers with more than 25 employees shall provide the same COVID-19 Vaccine Leave described above, provided, however, that the employee has already exhausted all available leave under Labor Code section 248.2 or the Mayor’s Public Order re: Supplemental Paid Sick Leave Due to COVID-19.

Effective Date

The Order’s effective date was June 24, 2021, but the requirements described above apply retroactively to January 1, 2021.  Any employees who took leave to receive a COVID-19 vaccine beginning on or after January 1, 2021, must be duly compensated under the Order upon written or oral request.  The Order is currently set to terminate on its own on September 30, 2021, with minor exceptions for employees who take leave on or around the time of expiration.

Rate of Pay

Nonexempt employees entitled to COVID-19 Vaccine Leave are to be compensated at the highest of the following rates:

  • The normal rate of pay for the workweek in which the leave is taken;
  • The city of Los Angeles’s minimum wage ($15 per hour as of July 1, 2021); or
  • The average hourly pay for the preceding 60 days, not including overtime.

Exempt employees are to be compensated for the leave in the same manner as the employer calculates other forms of paid leave. However, leave required by the Order is not to exceed $511 per day (or $255.50 per each four hours), or $1,022 in the aggregate.

Next Steps

Employers may not require an employee to use other paid or unpaid leave prior to using the COVID-19 Vaccine Leave required by this Order.  If you believe the Order applies to your operations in the city of Los Angeles, you should consult with counsel to ensure proper compliance with the new Order, and to explore the financial implications of compliance—including whether federal tax credits or offsets are available.

Although the Order applies specifically to Los Angeles, employers everywhere should be on the lookout for similar initiatives to provide employees with COVID-19 vaccine-related leave rights.  For example, as we reported recently, the new OSHA emergency temporary standard for COVID-19 provides a variety of leave rights to health care workers.  We will continue to keep you apprised of developments in this area.

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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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