On April 28, 2020, the Los Angeles County Board of Supervisors approved an interim urgency ordinance that went into effect immediately and requires employers with 500 or more employees nationally to provide supplemental paid sick leave to covered employees for qualifying COVID-19-related reasons. Following the City of Los Angeles, San Jose and San Francisco, this is the fourth California local emergency paid sick leave ordinance due to COVID-19. California also has a statewide Supplemental Paid Sick Leave for food sector workers under Governor Gavin Newsom’s Executive Order N-51-20. Unincorporated Los Angeles County’s ordinance is aimed at employers who are not already covered by the Families First Coronavirus Response Act (FFCRA) or Executive Order N-51-20.
Covered Employers/Employees
The ordinance applies to private-sector employers with 500 or more employees nationally; however, it’s silent on how employer size is calculated.
An “employee” under the ordinance is any individual who performs any work within the geographic boundaries of the unincorporated areas of the County of Los Angeles for an employer. The ordinance specifies that a worker is presumed to be an employee, and the employer has the burden to demonstrate otherwise, such as the worker is an independent contractor instead. In addition to excluding already covered food sector workers, employers may exclude employees who are defined as a:
- Health Care Provider: An employee who provides emergency response services, including but not limited to: (1) medical professionals; (2) employees who are needed to keep hospitals and similar health care facilities well supplied and operational; (3) 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 (4) employees included in the definition of heath care provider in the regulations issues by the U.S. Department of Labor (DOL); or an
- Emergency Responder: An employee who provides emergency response services, including, but not limited to, any of the following: (1) peace officers; (2) firefighters; (3) paramedics; (4) emergency medical technicians; (5) public safety dispatchers or safety telecommunicators; (6) emergency response communication employees; (7) rescue service personnel; and (8) employees included in the definition of emergency responder in the regulations issued by the DOL.
Collective bargaining agreements (CBA) are potentially exempted; CBA parties can expressly waive any or all of the law’s requirements if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party are prohibited.
Paid Sick Leave Entitlements and Amount of Leave
Employees who work at least 40 hours per week are classified as full-time and are entitled to receive 80 hours of supplemental paid sick leave, calculated using an employee’s highest average two week pay over the period of January 1, 2020, through April 28, 2020.
Employees who work fewer than 40 hours per week are not classified as full-time and are entitled to receive an amount of sick leave no greater than the employee’s average two week pay over the period of January 1, 2020, through April 28, 2020.
The total number of hours of supplemental paid sick leave under the ordinance is in addition to any paid sick leave that may be available to the employee under California’s paid sick leave law.
Like with the FFCRA and other local supplemental paid sick leave ordinances, the amount paid to an employee is capped at $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.
The ordinance does not contain a specific provision addressing how to calculate the rate of pay. While a reference to an “average rate of pay” is in the enforcement provision, no specific guidance shows how to determine that average.
Although passed on April 28, 2020, the ordinance states an employer’s obligation to begin providing supplemental paid sick leave begins March 31, 2020. An employer offset provision applies to employers that provided “Voluntary COVID-19 leave,” which is additional paid leave for COVID-19-related purposes, above and beyond an employee’s regularly/previously accrued leaves. An employer’s obligation to provide supplemental paid sick leave is reduced for every hour an employer allowed an employee to take Voluntary COVID-19 leave in an amount equal to or greater than the requirements of the ordinance and for any of the qualifying reasons, on or after March 31, 2020.
Covered Use
Employees may use supplemental paid sick leave if they cannot work or telework because:
- A public health official or health care 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 ordinance provides an example of someone who is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease or a weakened immune system);
- The employee needs to care for a family member (defined as the employee’s child, parent or spouse) who is subject to a federal, state or local quarantine order related to COVID-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 school or child care provider ceases operations in response to a public health or other public official’s recommendation.
An employer must grant an employee’s supplemental paid sick leave request upon written request, which can include but is not limited to, text or email. An employer can seek the same documentation as allowed under the FFCRA, including related DOL Rules and Regulations. However, an employee may begin using this leave before employer-requested documentation is obtained.
An employer cannot require an employee to use any other employer-provided paid or unpaid leave, vacation or other paid time off prior to or in lieu of using this supplemental paid sick leave.
Retaliation, Enforcement and Remedies
Employers cannot retaliate against employees (such as terminate, reduce pay, demote or take other action) for exercising their rights under the ordinance.
Employees claiming an ordinance violation can bring a civil suit in state court. If successful, an employee may recover: reinstatement to their previously held position; back pay and supplemental paid sick leave unlawfully withheld at the employee’s average rate of pay; other appropriate legal or equitable relief the court may determine; and reasonable attorney’s fees and costs.
The ordinance went into effect immediately upon passage and will remain in effect until December 31, 2020, unless the Board takes action to extend it.
Employers with operations or employees working in Los Angeles County should determine whether any employee locations are in an unincorporated or incorporated area, and if subject to the ordinance, should review policies and practices for compliance.
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.
