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City of Los Angeles Issues 3 Orders Related to Supplemental Paid Sick Leave and Worker Protection

April 10, 2020Client Alert

On April 7, 2020, Mayor Eric Garcetti issued three emergency orders that have an impact on employers in the City of Los Angeles: (1) requiring 80 hours of COVID-19-related paid sick leave to employees of large employers; (2) requiring non-medical essential businesses to provide non-medical grade masks for their employees; and (3) additional protections for grocery, pharmacy, and food delivery workers.

LARGE EMPLOYERS REQUIRED TO PROVIDE COVID-19 SUPPLEMENTAL PAID SICK LEAVE

After making some modifications to a proposed ordinance submitted by the City Council, Mayor Eric Garcetti signed an emergency order called Supplemental Paid Sick Leave Due to COVID-19 (the “Emergency Order”). The Emergency Order provides up to 80 hours of COVID-19-related paid sick leave to employees of large employers. The Emergency Order took effect on Monday, April 7, 2020, and will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

Who Is Covered by this Emergency Order?

Covered Employers:

The Emergency Order covers employers who have more than 500 employees within the City of Los Angeles or 2,000 or more employees within the United States. Currently, there is no guidance on how to count employees. A covered employer may include employers who hire employees through the services of a temporary service or staffing agency if the employer exercises control over the wages, hours or working conditions of employees.

Covered Employees:

Employees covered by the Emergency Order are individuals who perform any work in Los Angeles’s geographic boundaries for a covered employer if they were employed by the same employer from February 3, 2020, through March 4, 2020.

There are some exceptions:

  1. New Businesses. A business that started in or relocated into Los Angeles on or after September 4, 2019, through March 4, 2020, is exempt. The employer must not have been a business in the City for the 2018 tax year. However, this exemption does not apply to construction businesses and film producers.
  2. Closed Businesses and Organizations. Any business or organization that was closed or not operating for 14 or more days due to city official’s emergency order because of COVID-19 or provided at least 14 days of leave are exempt.
  3. Generous Existing Benefits. If an employer has a paid leave or paid time off policy that provides a minimum of 160 hours (4 weeks) of paid leave annually to any employees, it is exempted as to those employees that received the more generous paid leave.
  4. Healthcare Providers and Emergency Personnel. Health care providers, including contract workers who work at a licensed health facility, are not entitled to paid leave under the Emergency Order. This leave is also not available for individuals specified in the April 1, 2020, Los Angeles Safer at Home emergency order, which includes first responders, emergency management personnel, gang and crisis intervention workers, public health workers, emergency dispatchers, law enforcement personnel, and related contractors and others working for emergency services providers. The Mayor indicated this exemption is intended to “ensure that City regulations do not unintentionally cause staffing shortages at hospitals and critical health facilities that are on the frontlines of our fight against this pandemic.”
  5. Global Parcel Delivery Services. Because global parcel delivery is “an essential Emergency Service vital to the health and safety during this pandemic,” employees in this category are also not entitled to leave under the Emergency Order.
  6. Government Works. Government agencies working in the course and scope of their public service employment are exempt.

Unionized Employees/Collective Bargaining Agreements

Any collective bargaining agreement in place as of April 7, 2020, may supersede the Emergency Order if it contains COVID-19-related sick leave provisions. When that agreement expires or is being renegotiated, the parties can expressly waive the Emergency Order’s requirements if the waiver is explicitly set forth in the agreement in clear and unambiguous terms.

If a collective bargaining agreement that was in place on April 7, 2020, does not address COVID-19-related sick leave provisions, an employer must comply with the Emergency Order unless and until the agreement is amended to include an express, clear and unambiguous waiver.

How Are Total Hours/Pay Calculated?

Full-time employees(those who work at least 40 hours/week) are eligible to receive up to 80 hours of supplemental paid sick leave calculated based on the employee’s average two-week pay from February 3, 2020, to March 4, 2020.

Part-time employees(those who work less than 40 hours/week) are eligible to receive no greater than the employee’s average two-week pay over February 3, 2020, to March 4, 2020.

The amount an employee can receive is capped at $511 per day or $5,110 total. Employees of joint employers are only entitled to the total aggregate amount of leave specified for one employer.

What Can Supplemental Paid Sick Leave Be Used For?

Upon an employee’s oral or written request, Supplemental Paid Sick Leave must be granted if the employee takes time off for one of the following reasons:

  1. Because a healthcare provider or public health official requires or recommends the employee isolate or self-quarantine;
  2. Because the employee is at least 65 or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. To care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
  4. To provide care for a family member whose senior care provider or whose school or childcare provider (children under 18) closes in response to public health or other public official’s recommendation, when the employee cannot secure a reasonable alternative caregiver.

An employer may not require a doctor’s note or other documentation.

Are There any Offsets?

Concurrence with FFCRA: Supplemental Paid Sick Leave under the Emergency Order runs concurrently with paid sick leave under the Families First Coronavirus Response Act (FFCRA). However, Supplemental Paid Sick Leave under the Emergency Order is in addition to California/Los Angeles-mandated paid sick leave.

Offset: If an employer has already provided paid leave since March 4, 2020, for COVID-19-related purposes, any hour will be offset against the 80-hour requirement. For example, if an employer has already provided an employee 5 hours of paid leave for COVID-19 purposes post-March 4, 2020, the employer would only be obligated to provide 75 hours to a full-time employee under this ordinance.

What Are the Penalties for Noncompliance?

Employers cannot retaliate against employees who request and/or take Supplemental Paid Sick Leave.

If an employer violates the Emergency Order, 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.

NON-MEDICAL MASKS REQUIRED FOR ESSENTIAL, NON-MEDICAL WORKERS (AND CUSTOMERS AND VISITORS)

Starting April 10, 2020, the City of Los Angeles issued an order requiring that all employers of non-medical essential businesses provide non-medical grade masks (e.g., scarves and bandanas) for their employees while at the workplace. The order also requires that such employees wear non-medical grade masks while at work. For purposes of this order, non-medical essential businesses include, but are not limited to, grocery store workers, plumbers, electricians, HVAC installers, carpenters, property managers, leasing agents, restaurant workers, and transportation workers. In addition, employers must provide access to clean restrooms with proper supplies or alternative sanitizing agents, at the employer’s expense, and employees must be allowed to wash their hands every 30 minutes.

Customers and visitors of these essential businesses must also wear face coverings to provide additional protection for employees and other customers. Business owners may refuse admission or service to customers and visitors who fail to wear face coverings. The order recommends, but does not require, that all people wear face coverings when they are outside their homes to obtain essential services.

The most recent order is in addition to Mayor Garcetti’s issuance of the COVID-19 Safety Guidance for Construction Sites, which provides guidelines on how employers can help prevent the spread of COVID-19 on construction sites. Read Greenberg Glusker’s summary on the Guidelines.

MAYOR GARCETTI AMENDS THE CITY COUNCIL’S ORDER ON GROCERY, DRUG RETAIL AND FOOD DELIVERY WORKER PROTECTION

Effective immediately in this recently issued order, grocery and drug retail stores are required to approve an employee’s request to change a work schedule under the following circumstances: (1) to provide daycare for the employee’s own child; (2) to care for a sick member of the employee’s immediate family or member of its household; or (3) if the employee falls ill, exhibits a symptom of COVID-19 as identified by the CDC, or suspects having been exposed to COVID-19. A food delivery company can allow an employee to decline orders without negative repercussions under the same circumstances.

Additionally, before hiring a new employee or using a contract, temporary service or staffing agency, a grocery or drug retail employer must offer the work to current employees if: (1) the current employee is qualified to do the work as reasonably determined by the employer; and (2) the additional work hours would not result in the payment of a premium rate under California overtime law.