Update: Large Employers Required to Pay Coronavirus-Related Sick Leave Under New L.A. County Ordinance

DANA KRAVETZ
MAY 8, 2020

In a previous alert, Michelman & Robinson reported that an ordinance was signed into law several weeks ago requiring certain employers to provide supplemental sick leave to employees within the City of Los Angeles. Now, by way of a new ordinance unanimously passed by the L.A. County Board of Supervisors on April 28, 2020, that requirement has been expanded to apply to employers with operations, or employees working, in unincorporated L.A. County.

For the most part, the unincorporated L.A. County ordinance—passed in the wake of the COVID-19 crisis—is identical to the City of L.A. law that went into effect in late March. For this reason, M&R restates our answers to questions about the citywide ordinance to include reference to the one now in place in unincorporated L.A. County.

Q. Do the ordinances in the City of L.A. and unincorporated L.A. County apply to any sized company?

A. No, only large employers are bound by the laws, which define large employers as those having more than 500 employees nationwide (which employees are not covered by the paid leave provisions of the Families First Coronavirus Response Act, described here). Essentially, the ordinances expand what is provided under the Families First Act to large employers in the City of L.A. and unincorporated L.A. County that are exempt from the federal law.

Q. How much paid sick leave will employers have to pay employees taking leave under the ordinance?

A. Through December 31, 2020, when the ordinances are set to expire, qualifying full-time employees must be given up to 80 hours of supplemental paid sick leave related to the coronavirus pandemic. Part-time employees (those who work less than 40 hours per week) will be entitled to receive an amount no greater than their average two-week pay over the period of February 3 through March 4, 2020 for the city ordinance, and January 1, through April 28, 2020 for the unincorporated L.A. County law. In either case, the supplemental paid sick leave is in addition to the amount of paid leave the employer allows for pursuant to its existing policies.

Q. What types of absences from work does the ordinance contemplate? 

A. The ordinances require employers to provide supplemental paid sick leave upon the oral (City of L.A.) or written (City of L.A. or unincorporated L.A. County) request of an employee if any of the following apply:

• The employee takes time off 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 employee takes time off work because 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
• The employee takes time off work because 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
• The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or child care 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

Q. As a large employer, will I have to pay coronavirus-related sick leave for all of my employees that seek it?

A. No, only individuals that work in the City of L.A. and have been employed by you since at least February 3, 2020, and have worked through March 4, 2020 (at a minimum), qualify for the supplemental leave benefits under the citywide ordinance. The unincorporated L.A. County law covers individuals that were employed on April 28, 2020. Note that the ordinances apply to full time, part time, and temporary employees.

Q. How will the supplemental paid sick leave be calculated?

A. For a full-time employee, the paid sick leave pay is based upon his or her average two-week pay from February 3 to March 4, 2020 (in the City of L.A.) or January 1 to April 28, 2020 (in unincorporated L.A. County). As mentioned above, a part-time employee’s paid leave is to be no more than his or her average two-week pay from this same time period. Of note, there is a cap on supplemental sick leave pay under the ordinance: $511 per day and $5,110 in aggregate. Also, employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

Q. Are there any categories of employers that will be exempt from the law?

A. Yes, the paid sick leave ordinance does not apply to employers of health care providers (as defined by California Government Code section 12945.2) or first responders (as defined in the ordinance as a peace officer, firefighter, paramedic, emergency medical technician, public safety dispatcher or safety telecommunicator, emergency response communication employee, and rescue personnel). Also, the ordinance in unincorporated L.A. County does not apply to food sector workers covered under California Governor Gavin Newsom’s Executive Order N-51-20.

Q. What if I’ve already paid sick leave to an employee for reasons related to COVID-19?

A. If you are a qualifying large employer, your obligation to provide 80 hours of supplemental paid sick leave under the ordinances will be reduced for every hour you allowed an employee to take paid leave. This, however, does not include hours accrued before March 4, 2020 (for the citywide ordinance) or March 31, 2020 (for the unincorporated L.A. County law).

Q. Is there anything else I should know about the coronavirus-related supplemental paid sick leave ordinances in the City of L.A. and unincorporated L.A. County?

A. Yes, rights under the laws cannot be waived; employees are not required to provide a doctor’s note or other documentation to avail themselves of supplemental paid sick leave; and employers cannot take any retaliatory action against an employee that requests to use or actually uses the benefits under the ordinances.

We are working diligently to keep our clients up to date on coronavirus-related developments. Nevertheless, these developments are changing daily and, in some cases even hourly, so it is important that you make sure you are dealing with the most current information. That being said, this alert is not offered, and should not be relied on, as legal advice. You should consult an attorney for guidance and counsel regarding any specific concern or situation.