Kelly M. Raney

Counsel
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New Ordinance Requires Large Employers in the Unincorporated Parts of Los Angeles County to Immediately Provide Supplemental Paid Sick Leave

May 4, 2020Client Alert

On April 28, 2020, the Los Angeles County Board of Supervisors voted to enact an interim urgency ordinance (the “Urgency Ordinance”) requiring employers with 500 or more employees within the United States to provide supplemental paid sick leave to covered employees. The Urgency Ordinance took effect immediately and will expire on December 31, 2020, unless the Board extends it.

The Urgency Ordinance should not be confused with the Los Angeles City Emergency Ordinance on Supplemental Paid Sick Leave, which we discussed in this client alert. Importantly, the Urgency Ordinance only applies to covered employers in the unincorporated parts of Los Angeles County.

Who Is Covered By The Urgency Ordinance?

The Urgency Ordinance applies to private employers with 500 or more employees in the United States (i.e., those employers not covered by the Families First Coronavirus Response Act). Guidance on how to calculate an employer’s number of employees is not provided.

The Urgency Ordinance covers individuals employed by an employer on April 28, 2020, who perform any work in the unincorporated areas of Los Angeles County. Workers are presumed to be employees, and employers have the burden of rebutting that presumption for workers classified as independent contractors.

The Urgency Ordinance does not apply to food sector workers covered by California Governor Newsom’s Executive Order N-51-20

Employers may exclude employees who are emergency responders or health care providers.

  • Excluded emergency responders include: (1) peace officers; (2) firefighters; (3) paramedics; (4) emergency medical technicians; (5) public safety dispatchers or safety telecommunicators; (6) emergency response communication employees; (7) rescue service personnel; and (8) employees included in the definition of emergency responder in the regulations issued by the U.S. Department of Labor (DOL).
  • Excluded health care providers include: (1) medical professionals; (2) employees who are needed to keep hospitals and similar health care facilities well supplied and operational; (3) employees who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat the COVID-19 public health emergency; and (4) employees included in the definition of health care provider in the regulations issued by the DOL.

With respect to unionized workers, the Urgency Ordinance provides that parties to a collective bargaining agreement (CBA) can expressly waive any or all of the Urgency Ordinance’s requirements if the waiver is explicitly set forth in the CBA in clear and unambiguous terms, but that unilateral implementation of terms and conditions of employment by either party cannot constitute a waiver of the rights under the Urgency Ordinance.

How Are Total Hours/Payments Calculated?

Employees who work at least 40 hours per week, or are classified as full-time, are eligible to receive 80 hours of supplemental paid sick leave, which employers calculate using an employee’s highest average two-week pay over the period of January 1, 2020, through April 28, 2020.

Employees who work less than 40 hours per week and are not classified as full-time receive an amount of supplemental paid sick leave no greater than their average two-week pay over the period January 1, 2020, through April 28, 2020.

The supplemental paid sick leave under the Urgency Ordinance is capped at $511 per day and $5,110 in aggregate (like paid leave under the Families First Coronavirus Response Act and the Los Angeles City Emergency Ordinance on Supplemental Paid Sick Leave).

Employees of joint employers are only entitled to the total aggregate amount of leave specified for one employer. The Urgency Ordinance does not indicate which joint employer is responsible for the supplemental paid sick leave. To find out if you are in a joint employment relationship with another employer and which of you is responsible for making the sick leave payments, we strongly urge you to contact your employment law attorney.

The supplemental paid sick leave is in addition to any paid sick leave an employee receives under California’s regular paid sick leave requirements (unrelated to COVID-19). Employers cannot require employees to use other paid or unpaid leave, paid time off, or vacation time, before or in lieu of using the supplemental paid sick leave provided under the Urgency Ordinance.

What Can Supplemental Paid Sick Leave Be Used For?

Employers must provide the supplemental paid sick leave on the written request (including, but not limited to email or text messages) of an employee, if the employee cannot work or telework because:

  1. 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 subject to a federal, state or local quarantine or isolation order related to COVID-19 (e.g., the employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, kidney disease, or weakened immune system);
  3. The employee needs to care for a family member who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
  4. 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 ceases operations in response to a public health or other public official’s recommendation.

Unlike the Los Angeles City Emergency Ordinance on Supplemental Paid Sick Leave, which expressly prohibits the requirement of a doctor’s note, the Los Angeles County Urgency Ordinance states that an employer may require a doctor’s note or other documentation for the use of the supplemental paid sick leave.

Are There Any Offsets?

The Urgency Ordinance allows covered employers to offset the supplemental paid sick leave required under the Ordinance by any voluntary paid sick leave an employer provided to employees above and beyond an employee’s regular or previously accrued leaves (e.g., sick or personal leaves). The offset is at a rate of hour by hour, in an amount equal to or greater than the leave requirements under the Urgency Ordinance, if provided on or after March 31, 2020, for any of the reasons set forth in the Urgency Ordinance.

What Are The Penalties For Noncompliance?

Employers cannot retaliate against employees who request and/or take supplemental paid sick leave, or for enforcing their rights to do so.

If an employer violates the Urgency Ordinance, employees can bring actions against their employer in the State of California and be awarded:

  1. Reinstatement, if they were terminated;
  2. Backpay and the Supplemental Paid Sick Leave that was unlawfully withheld (calculated at the employee’s average rate of pay);
  3. Other legal or equitable relief the court may deem appropriate; and
  4. The prevailing employee’s attorneys’ fees and costs.

Also, employees’ rights under the Urgency Ordinance are non-waivable as a matter of public policy.

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We encourage you to visit Greenberg Glusker’s Coronavirus Resource Center and to contact us with any questions.