Long Beach Adopts Supplemental Paid Sick Leave Ordinance with Emergency Order

The City of Long Beach, California enacted a new supplemental paid sick leave ordinance on May 19, 2020, which is effective immediately.  The ordinance applies to employers with 500 or more employees nationally and excludes those who are required to provide paid sick leave benefits under the federal Families First Coronavirus Response Act. 

Employees who are employed by a covered employer and who perform any work in Long Beach are eligible to receive the supplemental paid sick leave provided by the ordinance.  However, the determination of employee status in the construction industry will be made in accordance with California Labor Code section 245.5(a)(2). 

Employees may use the leave for any of the following reasons, unless they can work from home and are healthy enough to do so: 

  1. The employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19, or because the employee is caring for someone who is quarantined or isolated due to COVID-19;
  2. The employee takes time off work because the employee is advised by a health-care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised;
  3. The employee takes time off work because the employee experiences symptoms of COVID-19 and is seeking a medical diagnosis; or
  4. The employee takes time off work because the employee needs to provide care for a minor child whose school, daycare, or child care provider is closed or unavailable because of COVID-19 and the employee is unable to secure a reasonable alternative caregiver.

Employers can require employees to provide reasonable notice of their intent to use leave, but only for foreseeable absences.  Employers can require employees to identify the basis for requesting leave but cannot require a doctor’s note or other medical documentation to justify an absence.  

Employers must provide 80 leave hours to full-time employees.  The ordinance also requires employers to provide part-time employees with leave in an amount equal to the number of hours the employee works, on average, over a two-week period, to be determined by calculating the daily average of hours during the six-month period preceding May 19.  Employers may offset sick leave hours by previously provided time off with pay, so long as the time off was provided to an employee on or after March 4, 2020, and the employees could use for the time off reasons the ordinance requires or in response to an employee’s inability to work due to COVID-19. 

The supplemental paid sick leave must be paid at the employee’s regular rate of pay, but may be paid at two-thirds of the employee’s regular rate if it is used to care for another person.  The maximum value of the paid sick leave is $511 per day or a total of $5,110, and $200 per day (or a total of $2,000) for caregiver leave.  

Employers with a paid leave or paid time off policy providing a minimum of 160 hours of annual paid leave are exempt from the obligation to provide supplemental paid sick leave under the ordinance.  The ordinance also provides that the supplemental paid sick leave is in addition to pre-existing paid leave benefits, and that employees need not exhaust sick leave or other leave that they have before using the supplemental paid sick leave hours.  In addition, employers are prohibited from changing any of their paid time off policies after May 19 other than to increase the amount of paid leave that is available.  

The ordinance sets forth an exemption for certain collective bargaining agreements under the following conditions: 

  • If a collective bargaining agreement (CBA) in place on the effective date of the ordinance contains COVID-19 related sick leave provisions.
  • When a CBA expires or is otherwise open for renegotiation, the provisions of the ordinance may only be expressly waived if the waiver is explicitly set forth in the CBA in clear and unambiguous terms.
  • If a CBA is in place on the effective date of this ordinance, but the CBA does not address COVID-19 related sick leave provisions, an employer must comply with the ordinance.

Employers may not retaliate against employees for using or requesting supplemental paid sick leave, cannot require employees to find a replacement as a condition to approving leave, and cannot require an employee to waive the provisions of the ordinance other than through a CBA as set forth above.  

Employees may file a private right of action in Superior Court to enforce the ordinance.  Prevailing employees may be awarded reinstatement, actual and punitive damages, attorneys’ fees and costs, and any other legal or equitable relief that the court deems appropriate in such actions. 

The ordinance has no set expiration date, and the City Council will decide when the ordinance will end after receiving reports from the City Manager and Mayor every 90 days.

This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo

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