Los Angeles County Passes Ordinance Requiring Employers with 500+ Employees to Provide Supplemental Paid Sick Leave to Covered Employees Until December 2020

05.07.2020

On April 28, 2020, the Los Angeles County Board of Supervisors voted to unanimously adopt an Interim Urgency Ordinance (“Ordinance”) requiring private employers with 500 or more employees nationally to provide an additional 80 hours of Supplemental Paid Sick Leave (“SPSL”) to employees for COVID-19 related reasons.  Most notably, this Ordinance is retroactive, meaning an employer’s obligation to provide SPSL began on March 31, 2020.  The Ordinance remains in effect until December 31, 2020, unless it is extended.  The provisions of this Ordinance are discussed in detail below.

A.                Who Is Covered?

Employers:  The Ordinance covers private employers who employ, directly or indirectly, 500 or more employees nationally.  This includes employment through the services of a temporary service, staffing agency, or similar entity that employs or exercises control over the wages, hours, or working conditions of any employee. 

Employees:  Covered employees include those who were employed on the effective date of the Ordinance (April 28, 2020) and perform any work within the geographic boundaries of unincorporated Los Angeles County.   To determine if work is done in an unincorporated area of L.A. County, enter the address at the County Registrar-Recorder’s website.

The presumption is that a worker is an employee, placing the burden on the employer to prove the worker is actually an independent contractor.  However, the Ordinance provides exemptions for the following workers:

  • Food Sector Workers as defined in Governor Newsom’s Executive Order N-51-20.
  • Health Care Providers who provide emergency response services including, but not limited to: medical professionals; employees who are needed to keep hospitals and health care facilities supplied and operational; employees who are involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19; and employees included in the definition of health care provider in the regulations issued by the U.S. Department of Labor.
  • Emergency Responders who provide emergency response services including, but not limited to: peace officers; firefighters; paramedics; emergency medical technicians; public safety dispatchers or safety telecommunicators; emergency response communication employees; rescue service personnel; and employees included in the definition of emergency responder in the regulations issued by the U.S. Department of Labor.
  • Workers Covered under a Collective Bargaining Agreement may expressly waive any of the Ordinance requirements, but only if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions will not constitute a waiver.

B.                Supplemental Paid Sick Leave Requirements

1.                  Calculation of  Supplemental Paid Sick Leave Hours

Full-Time Employees:  An employee who works at least forty (40) hours per week or is classified as a full-time employee by the employer shall receive eighty (80) hours of SPSL.  SPSL is calculated based on an employee's highest average two week pay over the period of January 1, 2020 through April 28, 2020. 

Part-Time Employees:  An employee who works less than forty (40) hours per week and is not classified as a full-time employee by the employer shall receive SPSL in an amount no greater than the employee's average two week pay over the period of January 1, 2020 through April 28, 2020. 

The SPSL paid to an employee may not exceed $511 per day and $5,110 in the aggregate.  Employees of joint employers are only entitled to the total aggregate amount of leave specified for one employer.

2.                  Reasons Supplemental Paid Sick Leave May Be Used

An employer shall provide SPSL upon the written (includes, but is not limited to, electronic mail and text) request of an employee if the employee cannot work, or telework, 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 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, diabetes, kidney disease, or weakened immune system);
  • The employee needs to care for a family member (employee’s child, parent, or spouse) who is subject to a federal, State, or local quarantine or isolation order related to COV1D-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or
  • The employee takes time off work to provide care for a family member whose senior care provider or school/child care provider ceases operations in response to a public health or other public official’s recommendation.

Please note, an employer may not require an employee to use any other paid or unpaid leave, paid-time off, or vacation time available to the employee before the employee uses SPSL, or in lieu of SPSL.  However, an employer may require a doctor’s note or other documentation for the use of SPSL. 

3.                  Offsets for Leave Previously Provided

If an employer previously provided additional paid leave for COVID-19 related purposes, above and beyond an employee’s regular or previously accrued leaves (e.g., sick or personal leaves), the obligation to provide SPSL may be offset by every hour already provided.  For example, if an employer has already provided an employee ten (10) hours of paid leave for COVID-19 purposes after March 31, 2020, the employee would be obligated to provide only seventy (70) hours of SPSL to a full-time employee.

4.                   Consequences for Noncompliance

Under the Ordinance, retaliatory action against the employee is expressly prohibited.  This means an employer may not discharge, reduce compensation, or otherwise take adverse action  against any employee for requesting to use or using SPSL.  Remedies available to a wronged employee include:

  • Reinstatement;
  • Back pay calculated at the employee’s average rate of pay; and
  • Other legal or equitable relief the court may deem appropriate.

The court may also award the employee attorney fees and costs if the employee is the prevailing party. 

C.                Interplay With City of Los Angeles Supplemental Paid Sick Leave

Fortunately for employers, the Los Angeles City and Los Angeles County supplemental sick leave laws will not simultaneously apply to the same employee, because the location of the employee’s work determines which law will apply.  However, employers with employees who move from jobsite to jobsite or who have multiple jobsites in the City of Los Angeles and unincorporated areas of Los Angeles County will need to track and understand both laws.  The chart below summarizes some key points of each law for comparison purposes.  More details on the Los Angeles City Supplemental Paid Sick Leave is available here. 

 

City of Los Angeles

Unincorporated County of Los Angeles

Effective Date

April 7, 2020

This Ordinance is in effect until two calendar weeks after expiration of the COVID-19 local emergency period.

April 28, 2020 (retroactive to March 31, 2020)

This Ordinance is in effect until December 31, 2020

Supplemental paid sick leave available

Supplemental paid sick leave is available immediately as follows:

Full time employees — 80 hours of supplemental paid sick leave

Part-time employees — an amount no greater than the employee’s average two week pay over the period of February 3, 2020 through March 4, 2020.

Supplemental paid sick leave is available immediately as follows:

Full time employees — 80 hours of supplemental paid sick leave

Part-time employees — an amount no greater than the employee’s average two week pay over the period of January 1, 2020 through the effective date of the ordinance.

Covered Employer

A covered employer is an employer that has either:

500 or more employees within the City of Los Angeles; or

2,000 or more employees within the United States

The size of an employer’s business shall be determined by the average number of employees employed during the previous calendar year.

The number of employees includes, but is not limited to, workers that were full-time employees, part-time employees, or temporary or seasonal employees, and workers supplied through a temporary employment agency.

A covered employer is an employer that has 500 or more employees within the United States

Covered Employee

A covered employee is any individual who:

Has been employed with the same Employer from February 3, 2020 through March 4, 2020 and

Performs any work within the geographic limits of LA and

Is unable to work or telework for that Employer.

Remote employees are covered employees if they:

Normally work for a company at a location inside LA and are telecommuting from a home inside LA; or

Normally work for a company at a location inside LA, but are telecommuting from a home outside LA; or

Normally work for a company at a location outside LA, but are telecommuting from a home inside LA

A covered employee is any individual who:

Has been employed with the employer as of the effective date of the ordinance (April 28, 2020) and

Performs any work within the geographic limits of the unincorporated parts LA county

Use

Employees may use supplemental paid sick leave for the following purposes:

To take 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;

To take time off work because the Employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;

To take time off work because the Employee needs 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

To take 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 caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation and the employee is unable to secure a reasonable alternative caregiver.

An employee’s request to use supplemental paid sick leave can be written or oral.

Employees may use supplemental paid sick leave for the following purposes:

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 subject to a federal, state, or local quarantine or isolation order related to COVID-19;

The employee needs to care for a family member (i.e., an employee's child, parent, or spouse) who is subject to a federal, state, or local quarantine or isolation order related to COV1D-19 or has been advised by a health care provider to self-quarantine related to COVID-19; or

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.

Employers must provide supplemental paid sick leave upon an employee's request in writing, which includes, but is not limited to, an email or text message.

Employees cannot be required to use any other paid or unpaid leave, paid-time off, or vacation time before the employee uses Supplemental Paid Sick Leave

Documentation for use of leave

Employers may not require a doctor’s note or other documentation for the use of supplemental paid sick leave.

Employers may not inquire into or require employees to provide a description or explanation of the illness or condition necessitating the leave.

Employers may require employees to, verbally or in writing, provide the reason for taking leave for purposes of recordkeeping.

Employers may require a doctor's note or other documentation to support an employee's need to use supplemental paid sick leave.

Offset permitted

The supplemental paid sick leave is separate and apart from any regular paid sick leave that the employer provided or continues to provide the employee.

However, the employer’s obligation to provide 80 hours of supplemental paid sick leave is reduced for every hour an employer allowed an employee to take paid leave that was compensated at the amount required by the Ordinance, not including previously accrued hours, on or after March 4, 2020, for any of the four qualifying reasons described above, or in response to an Employee's inability to work due to COVID-19.

The supplemental paid sick leave is separate and apart from any regular paid sick leave that the employer provided or continues to provide the employee.

However, the employer’s obligation to provide 80 hours of supplemental paid sick leave is reduced for every hour an employer allowed an employee to take paid leave that was compensated at the amount required by the Ordinance, not including previously accrued hours, on or after March 31, 2020, for any of the four qualifying reasons described above, or in allowing an employee to take voluntary COVID-19 leave.

CBA Waiver

An existing collective bargaining agreement (CBA) may supersede the provisions of the Ordinance if it contains COVID-19 related sick leave provisions.

If an existing CBA does not address sick leave related to COVID-19, the employer must comply with Ordinance until the CBA is amended to expressly waive the terms. For period not covered by the CBA, employer must comply with the Ordinance.

The terms of 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.

Other exemptions from ordinance

The following are exempt from the Ordinance:

Employers of emergency personnel or a health care workers;

Employer that provides global parcel delivery services;

Employer with a “more generous” paid leave or paid time off policy (i.e. a policy that provides Employees with 160 hours or more of paid leave on an annual basis);

Employees of government agencies; and

Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave

The following are exempt from the Ordinance:

Emergency personnel (peace officers; firefighters;  paramedics; emergency medical technicians; public safety dispatchers or safety telecommunicators; emergency response communication employees; rescue service personnel; and employees included in the definition of emergency responder in the regulations issued by the U.S. Department of Labor);

Health care workers (medical professionals; employees who are needed to keep hospitals and similar health care facilities well supplied and operational; 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 employees included in the definition of health care provider in the regulations issued by the U.S. Department of Labor);

Food sector workers covered by California Governor's Executive Order N-51-20; and

Employees of federal, state, or local government agencies.

If you have any questions regarding Los Angeles County SPSL, or Los Angeles City Supplemental Paid Sick Leave, please contact the authors or your usual employment law counsel at AALRR.

This AALRR publication 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 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

PDF

Related Practice Areas

Back to Page

By scrolling this page, clicking a link or continuing to browse our website, you consent to our use of cookies as described in our Cookie and Privacy Policy. If you do not wish to accept cookies from our website, or would like to stop cookies being stored on your device in the future, you can find out more and adjust your preferences here.