On May 19, 2020, Long Beach became the sixth California locality to adopt a supplemental paid sick leave ordinance related to COVID-19. Passed as an urgency measure, the ordinance went into effect immediately.
Covered Employers/Employees
This Long Beach ordinance applies to employers with 500 or more employees nationally who are not required, in whole or in part, to provide paid sick leave benefits under the federal Families First Coronavirus Response Act (FFCRA).
Any employee working for an employer and performing any work within the geographic boundaries of the City of Long Beach is covered. As with other similar ordinances, the ordinance notes that the determination of employee status (with the exception of the construction industry using Labor Code section 245.5(a)(2)) will be made in accordance with Labor Code section 2750.3 (also known as AB 5, a codification of the Dynamex decision).
Paid Sick Leave Requirement
As of May 19, 2020, employers must provide and make available supplemental sick leave based on the number of hours an employee works within the city of Long Beach. A full-time employee is entitled to 80 hours of paid supplemental sick leave; a part-time employee is entitled to hours equal to the number of hours an employee works on average over a two-week period.
A part-time employee’s daily amount of paid supplemental sick leave is calculated based on the average number of hours the employee worked per day during the six months immediately preceding May 19, 2020. If an employee has been employed for fewer than six months, the employer must calculate the amount of paid supplemental sick leave based on the average hours the employer expected the employee to work per day at the time of hire.
Supplemental paid sick leave is in addition to pre-existing paid leave benefits, and the ordinance prohibits an employer from changing any paid time off policies on or after May 19, except to provide additional leave.
Qualifying Reasons for Use
An employee may use their supplemental paid sick leave hours immediately, and for any of the following reasons (that prevent the employee from working, including working from home):
- The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19, or is caring for someone who is isolated due to COVID-19;
- 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 by a health care provider;
- The employee is experiencing symptoms of COVID-19 and is seeking medical diagnosis; or
- The employee is caring for a minor child because the child’s school, daycare, or childcare provider is closed or unavailable because of COVID-19 and the employee is unable to secure a reasonable alternative caregiver.
An employer may require the employee to identify the basis for requesting paid supplemental sick leave; however, it cannot require a doctor’s note or other documentation for leave use. Employers can require employees follow reasonable notice procedures to use the paid supplemental sick leave, but only when the need for the leave is foreseeable.
Like with California paid sick leave, an employer cannot require an employee to find a replacement worker as a condition for leave approval.
Employees are not required to exhaust their sick leave or other accrued leave prior to their use of paid supplemental sick leave.
Pay
The employer must pay the employee for properly used supplemental sick leave at the employee’s regular rate of pay, up to a $511 daily cap and $5,110 total cap. However, if the employee is using the leave to care for another person, the employer may pay the employee at 2/3 their regular rate of pay, up to a $200 daily cap and $2,000 total cap.
Unused supplemental paid sick leave won’t be available after the ordinance is no longer effective and will cease to exist unless an employer extends an employee’s access to such leave. An employee is not entitled to be paid for unused paid supplemental sick leave under any circumstances.
Exemptions
Health care providers and emergency responders, as defined by the ordinance, are excluded from these provisions, although employers are encouraged to be judicious when using these definitions to exempt these employees from the ordinance provisions.
Also, employers with a paid leave or paid time policy that provides a minimum of 160 hours of paid leave annually are exempt from the ordinance.
The ordinance provides an employer offset. An employer’s obligation to provide paid supplemental sick leave may be reduced for every hour an employer provides an employee with paid leave in an amount equal to or greater than the requirements of the ordinance, on or after March 4, 2020, for any of the qualifying reasons in the ordinance or in response to an employee’s inability to work due to COVID-19. However, this excludes previously accrued hours.
Finally, a collective bargaining agreement (CBA) in place on May 19 may supersede the provisions of the ordinance if it contains COVID-19-related sick leave provisions. When the CBA expires or is otherwise open for renegotiation, the provisions of the ordinance may only be expressly waived. If a CBA is in place on May 19 but doesn’t address COVID-19-related sick leave provisions, an employer must comply with the ordinance unless and until the agreement is amended to expressly waive the ordinance’s requirements in clear and unambiguous terms.
Except for a CBA meeting the ordinance’s exemption requirements, an employee’s waiver of their rights under the ordinance is contrary to public policy and will be void and unenforceable.
Retaliation/Discrimination Prohibited
Employers are prohibited from terminating, reducing pay or otherwise discriminating against any employee for requesting use of paid supplemental sick leave, or otherwise exercising their rights under the ordinance.
Enforcement
An employee claiming an ordinance violation may bring a private right of action in state court. Potential remedies include: all actual damages suffered by the employee, including but not limited to, back pay and supplemental paid sick leave unlawfully withheld; punitive damages; reinstatement; reasonable attorney’s fees and costs; and any other legal or equitable relief the court deems just and appropriate.
Ordinance Expiration?
The ordinance doesn’t have an official end date. Instead, the Long Beach city manager must report back to the city council and mayor every 90 days on the effectiveness of the ordinance. Based on the information contained in these 90-day reports, the city council will determine when the ordinance will no longer apply.
Because the ordinance took effect immediately, covered employers should review their existing policies and make necessary changes to comply with the ordinance.
Bianca Saad, Employment Law Subject Matter Expert, CalChamber
Visit the CalChamber Coronavirus (COVID-19) webpage for more COVID-19-related federal, state and local resources, including California Counties Health and Stay-at-Home Order pages.
Access additional COVID-19-related HRWatchdog blogs.
