On April 7, 2020, Los Angeles Mayor Eric Garcetti issued an emergency Public Order mandating certain “larger” employers who are not covered by the federal Families First Coronavirus Response Act (“FFCRA”) to provide "supplemental paid sick leave" for specified COVID-19-related absences. Note that the City of Los Angeles Order permits more employees to obtain these benefits than FFCRA, so we urge readers to review this information carefully. We summarize the highlights below:
Q:
When is the Order effective?
A:
The Order is
effective Friday, April 10. 2020
, and will remain in effect until two weeks after the Mayor declares an end to the local state of emergency.
Q:
Which employers are covered?
A:
An employer is covered if it has 500 or more employees within the City of Los Angeles or 2,000 or more employees nationwide.
Q:
What employees are covered?
A.
Under the Order, any employee who worked for a covered employer between February 3, 2020 and March 4, 2020 is entitled to up to 80 hours of "supplemental paid sick leave," if the employee takes time off from work for a specified reason.
Q:
For what reasons may an employee take leave?
A.
A covered employee may take paid leave for any of the following reasons:
1.
A public health official or health provider requires or recommends for the employee to be quarantined or to self-quarantine to prevent the spread of COVID-19;
2.
The employee is 65 years old or older;
3.
The employee is any age and has a health condition that puts them at risk, such as heart disease, lung disease, asthma, diabetes, kidney disease or a weakened immune system;
4.
The employee takes 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 to be isolated or to self-quarantine;
5.
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 caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.
Q:
May the employer ask for a doctor's note or other documentation to support the employee's need for time off?
A:
No. The Order makes clear that a covered employer cannot condition the provision of paid sick leave on the employee providing a doctor’s note or other documentation showing the existence of one or more of these qualifying reasons. In other words, the employer is required to provide paid leave, if requested, upon the employee's written or verbal assertion that he or she needs leave for one of these reasons.
Q:
How much pay does an employee receive?
A.
Full-time employees are eligible for up to 80 hours of paid leave, paid at the level of the employee's average bi-weekly pay for the period from February 3, 2020 to March 4, 2020. Part-time employees are eligible to receive no greater than their average bi-weekly pay between February 3 and March 4. Maximum payout per employee is capped at $511 per day, and $5,110 total for each employee.
Q:
Is the employer entitled to any offset for paid time off already provided to employees?
A.
Maybe. A covered employer's obligation to pay supplemental paid sick leave may be reduced for every hour the employer allowed the employee to take paid sick leave – not including the employee's use of accrued paid sick leave – on or after March 4, 2020 in response to the employee being unable to work due to COVID-19. For example, assume an employee who normally works eight hour per day has been unable to work for 10 workdays (80 hours) since March 4 due to COVID-19 stay-at-home orders, and further assume the employee elected to use five days (40 hours) of accrued sick leave to cover the first five days of absence and that the employer then allowed the employee to take another 40 hours of paid sick leave after the employee's accrued sick leave was exhausted. The 40 hours for which the employee used accrued sick leave cannot be taken as an offset against the employee's 80-hour paid sick leave entitlement under the Mayor's Order, but the following 40 hours of paid leave the employer provided can be offset. As a result, the employee would be entitled to a total of 40 additional hours of supplemental paid sick leave under the Mayor's Order.
Q:
Are any employers exempt?
A.
Yes. There are several exemptions, as follows:
- businesses that ceased operations for 14 days or more due to a City official's COVID-19-related emergency order;
- new businesses – other than construction companies and film producers – which started their operations within the City on or after September 4, 2019;
- businesses which already have generous paid time off or paid leave policies that provide employees with at least 160 hours of paid time off annually;
- employers of first responders and healthcare providers; and
- global parcel delivery services.
Q:
Is there an exception for employers covered by a collective bargaining agreement?
A.
The provisions of the Order may be superseded by the provisions of a collective bargaining agreement ("CBA") if the CBA is already in place on the effective date of the Order and it contains COVID-19-related sick leave provisions. For CBAs entered into after the effective date of the Order, this exemption will apply only if the agreement explicitly waives the provisions of the Order in clear and unambiguous terms.
Q:
What are the remedies for violations of the order?
A.
The Order prohibits employers from retaliating against any employee for asking for leave, taking leave or otherwise asserting his or her rights under the ordinance. Employees have the right to file suit against employers in superior court for violations of the Order and may be awarded reinstatement, back pay, damages, costs and attorneys' fees.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at
www.brgslaw.com
.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Philip Reznik
Ballard Rosenberg Golper & Savitt, LLP
