Updated commentary on this issue was posted on April 10. Please click here to read more.
On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (FFCRA). As previously reported, FFCRA requires private employers with fewer than 500 employees each (and state and local government employers, regardless of size) to provide special paid emergency FMLA leave and paid sick leave related to COVID-19 in certain circumstances beginning April 1, 2020.
Because FFCRA expressly excludes private employers with 500 or more employees each, on March 27, 2020, the Los Angeles City Council unanimously passed the COVID-19 Supplemental Paid Sick Leave ordinance. If the measure is approved by Mayor Eric Garcetti, employers with 500 or more employees nationally — including persons whose wages, hours or working conditions are controlled by the employer, such as temporary employees — would be obligated to provide up to 80 hours of supplemental paid sick leave to employees who have worked within the Los Angeles city limits during the time period specified in the ordinance. With the exception of rights afforded under FFCRA, the ordinance would afford new rights to employees, above and beyond those to which they are entitled under existing laws. If and when the ordinance is approved, it would be in effect until Dec. 31, 2020, unless the city takes action to extend it.
With the exception of healthcare providers and first responders, under the ordinance, employees would be entitled to supplemental paid sick leave if they have been employed with the same employer in the city of Los Angeles from Feb. 3, 2020, through March 4, 2020. The employer’s obligation under the ordinance may be expressly waived in a collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.
An employee who is classified as full-time or who works at least 40 hours per week would be entitled to 80 hours of supplemental paid sick leave calculated based on the employee’s average two-week pay over the period of Feb. 3, 2020, through March 4, 2020. An employee who is not classified as full-time and who works less than 40 hours per week would be entitled to supplemental paid sick leave in an amount that cannot exceed the employee’s average two-week pay over the period of Feb. 3, 2020, through March 4, 2020. The supplemental paid sick leave, however, could not exceed $511 per day or $5,110 in the aggregate total. If an employer has already provided paid sick leave on or after March 4, 2020 for COVID-19-related reasons, the employer’s obligation under the ordinance would be reduced by every hour that was previously provided, not including any hours previously accrued.
Employers are prohibited from requiring a doctor’s note or other documentation to support the use of supplemental paid sick leave, and must provide the leave upon oral or written request if an employee takes time off because:
- A public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
- The employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease or a weakened immune system;
- The employee needs to care for a family member who is not sick but is in isolation or self-quarantine, as recommended or required by public health officials or healthcare providers; or
- The employee needs to provide care for a family member whose senior care provider or whose school or child care provider temporarily ceases operations in response to a public health or public official’s recommendation.
The ordinance expressly prohibits retaliation against any employee for exercising his or her rights under the ordinance. In addition, an employee who successfully brings a court action for any violation of the ordinance would be entitled to an award of attorneys’ fees and costs, reinstatement to his or her position if discharged in violation of the ordinance, back pay and supplemental paid sick leave unlawfully withheld, and other legal or equitable relief that a court deems appropriate.
If you have questions about how this ordinance would impact your business, please contact any of the McGuireWoods team members listed below, or any other member in the labor and employment group.
McGuireWoods has established a COVID-19 Response Team to help clients navigate urgent and evolving legal and business issues arising from the novel coronavirus pandemic. Lawyers in the firm’s 21 offices are ready to assist quickly on questions involving healthcare, labor and employment, education, real estate and more. For assistance, contact a team member or email firstname.lastname@example.org.
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.