On April 7, 2020, Mayor Garcetti signed an emergency Supplemental Paid Sick Leave Order superseding a related ordinance previously adopted by the Los Angeles City Council. The Order requires employers with (i) 500 or more employees within the City of Los Angeles, or (ii) 2,000 or more employees in the United States to provide up to 80 hours of supplemental paid sick leave. Together with the Families First Coronavirus Response Act, which applies to employers with 500 or fewer employees, virtually all employers within the City must provide COVID-19 related paid sick leave.
The Los Angeles Office of Wage Standards (OWS) published regulations on April 11, 2020, implementing the Order and clarifying its requirements.
The Order took effect on April 7, 2020 and will continue until two weeks “after the expiration of the COVID-19 local emergency.”
Covered Employers/Eligible Employees
The OWS regulations clarify that the size of an employer’s business is determined by the average number of employees employed during the previous calendar year. Full and part-time, temporary, seasonal, and employees supplied through an employment agency are to be included in the calculation.
An employee is entitled to supplemental paid sick leave if the individual performs any work or telework within the geographic boundaries of the City of Los Angeles and has been employed with the same employer from February 3, 2020 through March 4, 2020.
Eligible employees may not waive any of the requirements under the Order.
The regulations also caution businesses utilizing independent contractors that workers are presumed to be employees in California and that California law will be applied to determine the classification of a worker.
Under the Order, supplemental paid sick time can be used if the employee takes time off work (or telework) because:
Amount of Paid Sick Leave
Supplemental paid sick time for eligible full-time employees, defined as those who work at least 40 hours per week, is equivalent to 80 hours. A full-time employee’s rate of pay is calculated at the employee’s average two-week pay from February 3, 2020 through March 4, 2020.
Employees who work fewer than 40 hours per week will receive leave “in an amount no greater than the employee’s average two-week pay over the period of February 3, 2020 through March 4, 2020.” The regulations explain that the amount of leave is determined by adding the number of hours worked in four consecutive weeks during the February 3 to March 4 period and dividing the total by two.
Overtime premiums are not to be considered when calculating an employee’s average pay; however, the base rate before the premium for any overtime hours should be included in the calculation.
Supplemental paid sick leave shall not exceed $511 per day and $5,110 in the aggregate. Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.
The regulations provide that supplemental paid sick time may be taken intermittently.
The Order allows an offset for employers that voluntarily provided paid leave on or after March 4, 2020, for reasons (1) through (4) above (under “Permissible Uses”) or in response to an employee’s inability to work due to COVID-19. However, previously accrued hours (e.g., pre-existing vacation time or accrued paid sick leave) are explicitly excluded for offset purposes.
Employers exempt from the Order include the following:
The regulations state that employers should retain documentation demonstrating compliance with the Order. Documentation should include the name of the employee requesting the leave, date(s) for which leave is requested, the reason or category for the leave, whether the request was approved, and if not, the reason for denial.
Additionally, the regulations direct employers to retain any documentation that substantiates a claimed exemption from the Order.
Restrictions and Enforcement
Under the Order, paid sick leave cannot be conditioned on an employee providing a doctor’s note or other documentation. Further, employers cannot inquire into or require employees to describe or explain the illness or condition necessitating leave. However, an employer may require an employee to provide a reason for taking leave for recordkeeping purposes.
Failure to comply with the Order can result in costly litigation, as the Order allows aggrieved employees to seek reinstatement, back pay, supplemental paid sick leave at the employee’s average rate of pay, and attorneys’ fees and costs.