LA Mayor Signs COVID-19-Related Emergency Orders on Paid Sick Leave, Worker Protection

On April 7, 2020, Los Angeles Mayor Eric Garcetti signed three different emergency orders aimed at protecting workers during the COVID-19 pandemic.

Supplemental Paid Sick Leave Due to COVID-19

Last week, the Los Angeles City Council approved a local ordinance to provide supplemental paid sick leave to workers affected by COVID-19. Rather than approving the ordinance as drafted, Mayor Garcetti issued an emergency order, making some key changes to the City Council’s ordinance. The emergency order provisions, which are effective immediately, are detailed below.  

Covered Employer: Unlike the initial ordinance, which would have applied to employers with 500 or more employees in the United States, the mayor’s order applies to employers that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States. For purposes of the order, an “employee” is an individual who performs any work within the geographic boundaries of Los Angeles city for an employer.

Covered Employee and Employee Use: An employee who has been employed with the same employer from February 3, 2020, through March 4, 2020, is entitled to supplemental paid sick leave if the employee takes time off (meaning they are unable to work or telework) because:

1. A public health official or health care provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
2. 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;
3. The employee needs to care for a family member who is not sick but who public health officials or health care providers have required or recommended isolation or self-quarantine; or
4. The employee needs to provide care for a family member whose senior care provider or whose school or childcare provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or public official’s recommendation. This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.

An employee’s request may be made orally or in writing, and an employer may not require a doctor’s note or other documentation to use supplemental paid sick leave.

Amount of Paid Sick Leave: (1) An employee who works at least 40 hours per week or is classified as a full-time employee by the employer shall receive 80 hours of supplemental paid sick leave, calculated based on an employee’s average two week pay over the period of February 3, 2020, through March 4, 2020.

(2) An employee who works less than 40 hours per week and is not classified as a full-time employee by the employer shall receive supplemental paid sick leave in 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 subject to a cap of $511 per day and $5,110 total. Employees of joint employers are only entitled to the total aggregate amount of leave specified for employees of one employer.

Offset: An employer’s obligation to provide 80 hours of supplemental paid sick leave shall be reduced for every hour that an employer has allowed an employee to take paid leave (in an amount equal to or greater than what the order requires) on or after March 4, 2020, for any of the reasons permitted under the order (see numbers 1-4 above) “or in response to an Employee’s inability to work due to COVID-19.”

Exemptions: The order provides for the following exemptions:

1. Emergency and Health Services Personnel: An employer of an employee who is either Emergency Personnel or a health care worker is exempt from the order. Emergency Personnel refers to individuals specified in the April 1, 2020 City of Los Angeles Safer At Home emergency order Paragraph 5(vi), including all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, and related contractors and others working for emergency services providers. A health care worker shall encompass individuals described in California Government Code section 12945.2(c)(6) or individuals, including contract workers, working at a health facility licensed under California Health & Safety Code Section 1250.
2. Critical Parcel Delivery: An employer of an employee that provides global parcel delivery services is exempt from the order. Global parcel delivery is recognized in the order as an essential Emergency Service vital to the health and safety during this pandemic.
3. Generous Leave: If an employer has a paid leave of paid time off policy that provides a minimum of 160 hours of paid leave annually, the employer is exempt from any obligation to provide supplemental leave pursuant to the Order for the employee that received the more generous leave.
4. New Business Exemption: The Order exempts new businesses that started in the city of Los Angeles or businesses that relocated from outside the city on or after September 4, 2019, through March 4, 2020. To qualify, an employer could not have been in business in the city in the 2018 tax year. Certain businesses do not qualify for this new business exemption: construction businesses as defined in Section 21.30 b.1 of the Los Angeles Municipal Code or film producers as defined in Section 21.109 of the Los Angeles Municipal Code.
5. Government: The Order does not apply to employees of government agencies working within the course and scope of their public service employment.
6. Closed Businesses and Organizations: Any business 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 is exempt from the requirements of the Order.
7. Collective Bargaining Agreements: A collective bargaining agreement (CBA) in place on the effective date of the order may supersede the provisions of the order if it contains COVID-19-related sick leave provisions. Once the CBA expires or is otherwise open for renegotiation, the provisions of the order may only be expressly waived if the waiver is explicitly set forth in the agreement and in clear and unambiguous terms. If a CBA in place on the effective date of the order does not address COVID-19 related provisions, the employer must comply with the order unless and until the agreement is amended to expressly waive in clear and unambiguous terms set forth in the agreement.

Retaliatory action is prohibited, and an employee claiming a violation of the Order may bring an action in civil court and may be awarded reinstatement, back pay and sick leave unlawfully withheld, and other relief. The Office of Wage Standards (OWS) of the Bureau of Contract Administration must issue a rule and regulations consistent with the order, which will be posted on the WagesLA.lacity.org for employers and employees to further determine their rights and responsibilities under the order.

The order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

Worker Protection Order — Face Coverings Now Required

Mayor Garcetti also signed an emergency Worker Protection Order, effective April 10, 2020, requiring that all workers who work at businesses or perform services that are exempt under Paragraph 5(vii) of the City of Los Angeles Safer At Home Emergency Order (also referred to as “essential businesses”) must wear face coverings over their noses and mouths while performing their work. (Recognizing that health care professionals and first responders continue to wear hospital-grade masks, such as surgical masks or N95 respirators, this order is aimed at non-medical essential workers). 

Currently, the face coverings don’t need to be medical-grade masks or N95 respirators, but rather, fabric coverings, such as scarves and bandanas. Reusable face coverings must be frequently washed (i.e., at least once a day), and single-use face coverings properly discarded into trash receptacles.  

Employers operating essential businesses must do the following:

• Permit their employees to wash their hands at least every 30 minutes.
• Provide, at the employer’s expense, non-medical grade face coverings for their employees.
• Ensure that their employees have access, provided at the employer’s expense, to :
  • Clean, sanitary restrooms, stocked with all necessary cleansing products; or
  • Sanitizing agents required to observe hand sanitation protocols recommended by the Los Angeles County Department of Public Health.
• Implement social distancing measures for customers, visitors and employees that provide a six-foot buffer, to the extent possible, between individuals.

All customers and visitors must wear face coverings over their noses and mouths to provide additional protection for employees and customers. Currently, these face coverings don’t need to be medical-grade mases or N95 respirators but, like workers, can be facial coverings like scarves and bandanas. The order states that a business owner subject to these requirements may refuse admission or service to any individual who fails to wear required face coverings.

All retail businesses are encouraged to install plexiglass to separate cashiers and customers at all points of sale, and the Mayor reminds emergency-supplies sellers to abide by price gouging laws.

The order may be extended prior to May 1, 2020, and failure to comply constitutes a misdemeanor subject to fines and imprisonment.

Updated 5/27/20: On May 7, 2020, the Worker Protection Order was revised. Essential businesses, as defined under the order, now include bookstores, florists, clothing and shoe stores, sporting goods stores, toy stores and music stores. The revised order also imposes additional requirements on businesses that provide grocery/food delivery and/or ride-sharing or other transportation/car rental services. Additionally, those operating essential businesses must publicly post their social distancing protocol as outlined in the order.

Grocery, Drug, Retail and Food Delivery Protection

Finally, Mayor Garcetti issued the Grocery, Drug Retail and Food Delivery Worker Protection emergency order, which makes amendments to the related ordinance that was passed by City Council on March 27, 2020. The ordinance is aimed at giving these employees the rights to schedule changes and the opportunity to work additional hours before new employees are hired.

Under the ordinance, as modified by the Mayor’s order, grocery retail store employers, drug retail store employers and “food delivery platform” businesses (online businesses arranging for the delivery of a grocery store or restaurant/food facility order) must approve an employee’s request to change a work schedule under any of 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 feels ill, exhibits symptoms of COVID-19 as identified by the U.S. Centers for Disease Control (CDC) or suspects having been exposed to COVID-19.

Before hiring a new employee or using a contract, temporary service or staffing agency to perform work, grocery and drug retail store employers must first 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 wouldn’t result in the payment of overtime under Labor Code section 510.

The ordinance will end, either when Governor Newsom lifts his March 4, 2020, emergency order, or when Mayor Garcetti lifts the City of Los Angeles’s March 4, 2020, State of Emergency — whichever occurs later. Grocery and drug retail store employers and food delivery platforms should review the ordinance and order for additional details and requirements.

Mayor Garcetti’s COVID-19-related emergency orders can be accessed on the Los Angeles Mayor’s website.

Bianca Saad, Employment Law Subject Matter Expert, CalChamber

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