LA Mayor Issues Emergency Order Increasing Large Employers’ Paid Sick Leave Obligations During COVID-19

April 10, 2020

As McGuireWoods previously reported, in response to the Families First Coronavirus Response Act’s (FFCRA) exclusion of private employers with 500 or more employees from coverage for paid emergency FMLA leave and paid sick leave related to COVID-19, on March 27, the Los Angeles City Council unanimously passed the COVID-19 Supplemental Paid Sick Leave ordinance. This ordinance would have required employers with 500 or more employees nationally to provide supplemental paid sick leave to employees who worked within city limits during the time period specified in the ordinance.

To strike a necessary balance between competing interests of businesses and employees, on April 7, 2020, Mayor Eric Garcetti issued an emergency order modifying the proposed ordinance. The order went into immediate effect and will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

With the exception of rights provided under FFCRA, the order affords new rights to employees above and beyond those to which they are entitled under existing laws. Subject to various exemptions specified below, the new order impacts employers with either 500 or more employees within the city, or 2,000 or more employees within the United States. These employers must provide up to 80 hours of supplemental paid sick leave to employees (including persons whose wages, hours or working conditions are controlled by the employer, such as temporary employees) who are now unable to work or telework, but have worked for the same employer in the city from Feb. 3, 2020, through March 4, 2020.

The order specifies that an employee who is classified as full-time or who works at least 40 hours per week is 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 is 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, cannot 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 the employee’s inability to work due to COVID-19, the employer’s obligation under the order is 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 of any of the following:

  1. The employee has a COVID-19 infection or a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19.
  2. 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.
  3. The employee needs to care for a family member who is not sick but who is in isolation or self-quarantine on the orders or recommendation of public health officials or healthcare providers.
  4. 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, subject to the employee’s inability to secure a reasonable alternative caregiver.

As compared to the proposed ordinance passed by the City Council, the executive order increases the types of employers entirely exempted, including: (1) employers of healthcare workers or first responders; (2) employers that provide global parcel delivery services; (3) with the exception of construction businesses or film producers, employers that have started a new business in, or relocated to, Los Angeles on or after Sept. 4, 2019, through March 4, 2020, and were not in business within the city during the 2018 tax year; (4) employers that provide a minimum of 160 hours of paid leave annually; and (5) employers that have closed their business or suspended operations for a period of 14 or more days due to a city official’s emergency order for COVID-19-related reasons or provided at least 14 days of leave. The order also does not apply to employees of government agencies who are working within the course and scope of their public service employment.

In addition, the order addresses workplaces governed by collective bargaining agreements (CBA). Although a CBA may supersede the provisions of the order, it can do so only if it was in place as of April 7, 2020, and contains COVID-19-related sick leave provisions. Otherwise, until the CBA expires or is open for renegotiation, the employer must comply with the order unless and until the CBA is amended to expressly waive the employer’s obligation under the order in clear and unambiguous terms.

The order expressly prohibits retaliation against any employee for exercising his or her rights under the order. In addition, an employee who successfully brings a court action for any violation of the order is entitled to an award of attorneys’ fees and costs, reinstatement to his or her position if discharged in violation of the order, back pay and supplemental paid sick leave unlawfully withheld calculated at the employee’s average rate of pay, and other legal or equitable relief that a court deems appropriate.

If you have questions about how this order impacts 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 [email protected].

McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.